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U.S. Supreme Court Oral Arguments, presented by The Oyez Project (www.oyez.org)enVillage of Willowbrook v. Olech - Oral Argumenthttp://www.oyez.org/cases/1990-1999/1999/1999_98_1288/argument
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<a href="/cases/1990-1999/1999/1999_98_1288">Village of Willowbrook v. Olech</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of James L. DeAno</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in Number 98-1288, The Village of Willowbrook v. Grace Olech.</p>
<p>Mr. DeAno.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The question on which this Court granted the petition for writ of certiorari in this case is whether the Equal Protection Clause gives rise to a cause of action on behalf of a class of one where that claimant does not allege membership in any class or group, but asserts that vindictiveness motivated the government to treat her differently than others similarly situated.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Mr. DeAno, let me ask you a question or two about this so-called class of one.</p>
<p>Was it really a class of one, or were there five people or so involved in the suit?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: I think the facts of the complaint could give rise to a class of five.</p>
<p>However, the cause of action was brought under this vindictive action,...</p>
<p>class-of-one type of equal protection claim, so I know that there's an argument in this case that there is...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes, well, it wasn't in fact a class of one, and when has this Court ever said that the Equal Protection Clause only addresses classes as opposed to individuals?</p>
<p>Have we ever said that?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: The case that we cite... no, not directly, this Court has not said that.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And why should we?</p>
<p>I mean, if the city wants to single out one citizen for some irrational action, why isn't that citizen protected?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: The citizen is protected if that class is drawn for a constitutionally impermissible reason, and we submit that vindictiveness is not a constitutionally impermissible reason, and really what it's looking into is the distinction between...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I don't even understand the vindictiveness point.</p>
<p>I mean, if the city says to Ms. Olech, we won't hook you up to city water unless you give us 50 feet of land for a street, and every other person in the city, they say, fine, we'll hook you up, give us 5 feet, but to her they say 50 feet, now, what does vindictiveness have to do with it at all?</p>
<p>I mean, is there no equal protection claim for Ms. Olech?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: We submit that if there is an equal protection claim, it is not under this Esmail-type theory, and then...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But isn't there a claim?</p>
<p>You treated me differently.</p>
<p>You required 50 feet from me and 10 feet from every other person in the city.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: If the reason that they sought the additional 50 feet in your example was constitutionally impermissible, to punish...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: It doesn't matter what the reason was.</p>
<p>Don't you have to treat citizens equally when hooking them up to city water?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well, I would look at this Court's case of Snowden v. Hughes, where the Court said that simply differential treatment, even if it violates State law, and in this case village policy, it is not a violation of the Equal Protection Clause unless it is done for a constitutionally impermissible reason.</p>
<p>Now...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. DeAno, supposing that in this case they asked 50 feet of Mrs. Olech's property and asked only 10 feet from people whose property was indistinguishable from Mrs. Olech, do you say that that would not be any sort of an equal protection claim?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: If it was done for an impermissible, constitutionally impermissible...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: When is it...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: you keep referring to impermissible.</p>
<p>All the Constitution says is, you shall not deny people equal protection of the laws.</p>
<p>That's constitutionally impermissible, period.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Justice Scalia, I would point to the Snowden case where the Court said, simply differential treatment is not a violation of...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, of course not, if there's a rational basis for the difference.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: And...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It becomes constitutionally impermissible when there is no rational basis.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: And that's what we're arguing in this case, that...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Oh, it's a perfectly rational basis.</p>
<p>We want an additional 40 feet.</p>
<p>We're greedy.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well...</p>
<p>[Laughter]</p>
<p>If...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It's perfectly rational, you see.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well, if the rational basis is to serve a legitimate government objective, for example, in this instance to upgrade and improve an existing road, then we submit that the question should be, if it's an equal protection claim it should fall under traditional equal protection analysis, with the...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. DeAno, one problem I have with that answer is, how do we get even to know what the purpose of the government was when this case is tossed out on a 12(b)(6) motion and all we're supposed to look at is the face of the complaint, and the complaint doesn't say anything about, they wanted to widen the road.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well, I think as the district court found, the complaint alleges that the reason that the village sought the additional, and I think it's in this case 18 feet, was so that it could improve and dedicate this road.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Did the... the complaint said that?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: The complaint alleged that the reason they sought the additional space was so that they could, I believe, pave and complete the road with sidewalks and public utilities, and that's what the district court found to be a legitimate purpose.</p>
<p>We submit that if these facts give rise to an equal protection claim...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: We don't have the... do we have the complaint?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Yes.</p>
<p>It's at page 8 and 9 of the Joint Appendix.</p>
<p>It actually starts at page 3 of the Joint Appendix.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And where is the part where the plaintiff sets out that the State's... that the village's reason...</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: At page 9 of the Joint Appendix, and it's allegation number 25, where it's alleged that they sought the property so that they could dedicate the public roadway and construct pavement, public utilities...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Yes, thank you.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Okay.</p>
<p>Our position is not that no single individual can ever state an equal protection claim when they've been singled out for improper treatment.</p>
<p>Our point is that the Esmail doctrine coming from the Seventh Circuit essentially says that what we look to first is the government's motive, and our position is that motive need not be delved into if the ultimate objective or purpose is legitimate.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But you would agree, then, that there may be a claim stated by an individual who is not otherwise a member of a class if the individual states that the differential treatment is not rationally related to any legitimate governmental purpose.</p>
<p>Do you agree with that formulation?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Yes.</p>
<p>Under Snowden I agree that if it's a... the phrase used in Snowden, if it is purposeful and intentional discrimination, I think that looks into whether they've been singled out for reasons that the Constitution has found to be admissible.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, supposing... again, let's have the 50-foot and 10-foot examples, that from Mrs. Olech they want 50 feet, from people identically situated they want 10 feet, and it simply is a result of a goof in the City Clerk's office.</p>
<p>No one had it in for Mrs. Olech, but nonetheless that's the way it comes out.</p>
<p>Does the fact that it was a mistake rather than a conscious thing make the equal protection claim disappear?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: I believe so.</p>
<p>I don't believe that you can commit an equal protection violation through error, omission, mistake.</p>
<p>I think there has to be, under Snowden, an intentional and purposeful discrimination.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: There is certainly an intentional difference in treatment.</p>
<p>They're intentionally trying to get 50 feet from one person and only 10 feet from another.</p>
<p>Isn't that enough of a... you say that's not enough of an intent?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Intent versus motive, if the intent is to take 50 feet, then certainly they treated her differently than others...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: when they took less than 50 feet from them.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Right.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: However...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: That's not enough, according to you?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well, that may state a traditional equal protection claim, but then the question for the Court would be, is there a rational basis for this, and we submit that this complaint alleges a rational basis for why they asked for an additional 18 feet in this case.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: No, but you say it alleges a rational basis because establishing roads is a governmental objective.</p>
<p>Is that your answer?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Establishing roads and also for the purpose...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, what about the rational basis for the differential treatment?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: The differential treatment is the beginning of the analysis.</p>
<p>Once you find the differential treatment, I think then you look to whether there's a rational basis for that.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: In other words, your theory is that the government can treat people in any otherwise unjustifiably differential way so long as in isolation it has a legitimate objective for treating each individual in the way the individual is treated?</p>
<p>In other words, if the government says, well, I think we'll take 10 feet from this property owner, 25 feet from the property owner next door, and 50 feet from the property owner next door to him, in each instance we're going to take this land because we want to establish streets, and I take it your argument is that so long as in each instance they want to establish streets, the fact that they are intentionally differentiating in the amount of land taken is irrelevant.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: That...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Is that your argument?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: No.</p>
<p>That situation may give rise to an equal protection claim.</p>
<p>However, then the question would be whether the Court can find a conceivable rational basis for why the government asked for 10 feet in one instance, 25 feet in another.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<p>In other words, a rational basis for the difference in treatment?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Yes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Why isn't the complaint alleging... it may not be right, but it alleges a difference.</p>
<p>It says, from us they wanted 66 feet to build a road.</p>
<p>From everybody else in the town they wanted 15 feet, which isn't enough to build the road, and there's no basis for this distinction.</p>
<p>That's what I took it as saying.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: The complaint alleges those facts.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right.</p>
<p>So how, then, can you say that on its face the complaint doesn't state a claim?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Under the Esmail theory, where is... where the Court says to look at motive before you look at anything else, that's what we're saying, that that may be a traditional equal protection claim.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: You may be right or wrong about that, I don't know.</p>
<p>The... but we took the case, I take it, to decide whether there was a... one person could state an equal protection claim, and the first thing I read is that this isn't one person, it's five.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So now should we get into this much more difficult question about motive and so forth?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Not whether simply one person can ever state an equal protection claim, but whether that one person can state that they were singled out because of the government's motive, vindictiveness.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, suppose that they're singled out because of the government's motive, and it also happens that there's no rational basis, which I take it is what Judge Posner said.</p>
<p>He said... he said, they have stated a claim where the only reason that anybody could give as far as the complaint's concerned for this distinction is hatred or malice or some absurd state of mind.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I'll get his exact words, if you want.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well, in answer to that question, I think that...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: He says, if it refuses to perform this obligation for one of the residents for no reason... no reason.</p>
<p>No reason... other than a baseless hatred, then it would violate the Equal Protection Clause.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: And under traditional equal protection analysis, the question then would be for the Court to search the record to see if there is any conceivable rational basis.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, here we have the record.</p>
<p>It's the complaint.</p>
<p>I don't see any rational basis in the complaint.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: The... we submit that the rational basis is that in this instance they had a nondedicated road over which they were now being asked to place a public improvement.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I suppose if your hatred is not baseless, it's okay.</p>
<p>I mean, if you really... this woman deserves to be hated, or something...</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: No...</p>
<p>[Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: would that make it all right?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: No, it's not that if hatred is baseless, it's if the act, the legitimate... the goal of the government.</p>
<p>In this instance, we submit that what they were trying to do here was legitimate.</p>
<p>Whether their motive, then, was improper should not be relevant under...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Why, then, shouldn't you read this complaint to say, they wanted 33 feet to widen the road, but everybody else, they wanted only 15 feet.</p>
<p>Fine, if they want 33, they exercise their power of eminent domain and they pay us for the difference between 33 and 15.</p>
<p>If that's what the complaint is saying, we're supposed to read it liberally, then the 12(b)(6) dismissal is improper, because the complaint would not have on its face...</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: On that set of facts, if they alleged a traditional equal protection claim, the next question would be, is there a conceivable rational basis for what was done, and that's why we point, and why the district court pointed to paragraph 25, which alleged that although the respondent is saying the reason they did this is because they're retaliating against me, they also supplied an allegation that explained another basis, another reason why the village wanted that 18 feet.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But wouldn't that reason still be inadequate if everybody else was either not asked for the 33, or paid for the difference?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: I don't think so, because the reason... if nobody else was asked for 33 feet, that would create the classification.</p>
<p>But once the classification is created, then the question becomes, what was the legitimate government purpose?</p>
<p>Was there a conceivable rational basis?</p>
<p>So that's where we think paragraph 25 is...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It has to be a rational basis, not for taking the 33 feet, but a rational basis for treating this person different from other people, right?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: I agree with that, and the reason that she was asked for the 33 feet is why she was treated differently.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But other people, they did not have the need for the 33 feet from other people?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: This is a unique situ... no, because in this situation we had a nondedicated road.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But we don't know that from the motion to... from the complaint and the motion to dismiss, do we?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well, the complaint alleges that it had never been dedicated, and that there had never been any easement granted to any governmental body for the use of any portion of it, so...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: You say all the facts necessary to support your argument that there is a rational basis can be deduced from the complaint?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Yes, Your Honor, and that's what the district court found, that...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I think that's asking rather a lot of a court like this.</p>
<p>I mean, I thought we took this case to find out whether one person who was not otherwise a member of a class can state an equal protection claim, and I think perhaps we're at the point where everybody is agreeing that the answer is yes, and the argument now is whether, in response to that claim, it can be found on this record that there is a legitimate governmental purpose to which the demand was rationally related, and I'm not sure that that's really what we're in business for here.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: The...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And it also seems that this was, as has been pointed out, dismissed on the face of the complaint.</p>
<p>I mean, normally you wouldn't make that motion.</p>
<p>You'd file an answer, and then there would be motions for summary judgment and you can look at it.</p>
<p>I don't know why the Village of Willowbrook took this unusual route and thought they had a right to dismiss the complaint rather than file an answer.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Because the complaint was brought under a theory of the Equal Protection Clause recognizing the Seventh Circuit in the Esmail case, and we submit that Esmail is not a proper... is not a viable cause of action under the Equal Protection Clause.</p>
<p>If this complaint had alleged...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, but if the complaint boils down to, they treated me differently than every other citizen when it comes to hooking up water, that's enough, and it doesn't matter if it's one person or five person... five people.</p>
<p>Now, go file your answer, you know.</p>
<p>We've answered the question, go file an answer.</p>
<p>I mean, why isn't that enough?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Because the reason that the motion to dismiss was filed was because Esmail is a new theory in the Seventh Circuit, and there had been no other cases interpreting it.</p>
<p>Looking at the complaint, we didn't believe that it fits the...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But you know, we don't necessarily follow a case from the Seventh Circuit.</p>
<p>Perhaps we wouldn't hear.</p>
<p>But if there's enough in the complaint to support a traditional equal protection claim, we wouldn't have to get into that.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: And that's not the theory, though, that the respondent brought this case under, and the petition that we filed asked not only that the Court consider whether a class of one could ever file an equal protection claim, it's whether a class of one who is alleging that the class was created by vindictiveness, because vindictiveness has not been a constitutionally protected interest.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But if one doesn't need to find vindictiveness in order to say that a complaint like the States have claimed for relief under the Equal Protection Clause, it seems to me we wouldn't get into the Esmail question at all.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: That's correct, but then if it was under traditional equal protection analysis we believe that the district court took the right approach and looked for a rational basis for what the government did, and that's why the case was dismissed in the district court.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Have we ever said... has this Court ever said that in the abstract there's some free-floating duty for the government always to act rationally?</p>
<p>We haven't said that.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: No.</p>
<p>No.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So the duty to act rationally applies only when the government's actions affect a certain person?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: When the government takes a position that differentiates, creates a class, then I think the question is whether... what is that class?</p>
<p>Is it a suspect class, or is it not?</p>
<p>If it's not, then the next question is, was there any conceivable rational basis to explain what the government did here?</p>
<p>So it can act irrationally if there's a conceivable rational... not, it can act irrationally, it can separate.</p>
<p>It can make classes if there's a rational basis for that.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Do you think your argument is consistent either with the... Justice Stone's opinion in Snowden or with Learned Hand's opinion in Burt?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: I think it's inconsistent with Learned Hand's position in Burt, but I think it's consistent with the Snowden decision in that in Snowden you had a single individual who claimed that he had been denied the right to be placed on the ballot in Illinois, and that he had qualified for that, and that the canvassing board maliciously, willfully, and arbitrarily refused him that right, and the Court said that despite those allegations you have not alleged intentional or purposeful discrimination, and it went on to say...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But that seems to me to suggest that the missing allegation was precisely the allegation you've got here.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Vindictiveness?</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Well, we cite, then, U.S. v. O'Brien and Arlington Heights and Washington v. Davis for the position that the motivation, which vindictiveness...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I understand that, but it seems to me if one confined himself to Snowden and Burt, you would lose.</p>
<p>These later cases you rely on I understand, but it seems to me those two cases are definitely against you.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Snowden I think it's how you interpret intentional and purposeful discrimination, and if you read intentional and purposeful discrimination broadly in that it's enough to say...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: If you read Snowden the way Learned Hand read it, then you lose, and he's usually a pretty good judge, we say.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: If you read Snowden the way Learned Hand did, yes.</p>
<p>What he's saying is, you only need to add the additional allegation that the reason you singled me out was because you were coming after me, and we submit that... what Esmail does is turns traditional equal protection analysis on its head, because it now says, the first thing you do is look at an allegation of motive, and if the motive is alleged to be improper, you don't have to go through...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, but an allegation of motive like that can also be construed as saying there was no other rational basis that can explain this except that motive, so it's really the functional equivalent of an allegation that there was no rational basis for what you did, which tends to be consistent with the notion that the city later, came round later and said 15 feet's enough.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: When the... what would give rise to the rational basis inquiry is the allegation that I've been treated separately or differently, and it's a bad motive.</p>
<p>Then you go to rational basis, and that's where we submit that this complaint, as the district court found, alleges a rational basis because the reason that they requested it is explained by the fact that this was a nondedicated, unimproved road.</p>
<p>They wanted to do all of this...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It was still nondedicated when they said 15 feet's enough.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: That's true, and at that point they made a decision that we can't... although it would have been more efficient to do all of this at once, to widen and improve the road, and put pavement there, if she's going to object to it, they consulted the village attorney and the village attorney said, if all you want to do is put the water main in, then 15 feet would be sufficient.</p>
<p>Now...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I always... you're talking about rational basis as though it means actual rational basis.</p>
<p>I had always thought that our rational basis test means a conceivable rational basis.</p>
<p>We don't look to whether the State actually had this rational basis in mind.</p>
<p>It might have.</p>
<p>This is a basis that we invent in our own imagination, and since that could have supported it, there's a rational basis, correct?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: I agree.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And you would assert that that conceivable rational basis will overcome a claim of a violation of equal protection even when you can bring in evidence to show that, oh yeah, that might have been a rational basis, but in fact they were out to get me.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They did not use that rational basis.</p>
<p>They were out to get me.</p>
<p>You would say still no equal protection violation?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Yes, and under U.S. v. O'Brien and Washington v. Davis, once there is a legitimate purpose, there's no need to look into...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You're beginning to talk subjectively again.</p>
<p>Once there is a... once there is a conceivable legitimate purpose.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Okay, conceivable, any imaginable by the court, even if it's not pled in the complaint, but we believe that this complaint does plead that.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Can you... does that carry as far as saying, yeah, we conceived it, but it has been shown on this record that that was indeed not the basis?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: If it can be conceived, then there's no reason to look into the record for why they might... why that motive might not have been the correct motive.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So this is a tempest in a teapot, is essentially what you're saying.</p>
<p>Yeah, you can have a class of one, but the court can always dream up a rational basis for what government does, and so, end of case.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Not always.</p>
<p>Not always dream up a rational basis, but when a complaint like this alleges facts that give rise to that, then certainly, and I agree that it's what can be conceived, not necessarily what is found, but here we have the allegation in the complaint.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And if the reason that government was out to get the person was because of race, there's a cause of action?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: There is.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And is that because it's a suspect class, or there's a constitutional right involved?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Because there's a suspect class, because they've differentiated because of...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Suppose they're discriminating allegedly because of the exercise of the constitutional right?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: That would be, but that's... and that is not the theory that has been pled in this case.</p>
<p>The theory that has been pled is what our argument is against, that Esmail says that vindictive action can give rise to an equal protection claim when you allege differential treatment and vindictiveness as the cause for it, or the motivation for it.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, but the vindictiveness allegedly was in retaliation for filing a lawsuit, which I assume she had a statutory right at least to file.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: That's correct, but then we... I think we would look at this case under traditional equal protection analysis, and the question would be, is there any conceivable rational basis...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, why is filing... if... why, if the vindictiveness on one hand is caused by hostility to race, another case it's caused by hostility to the fact that the... a lawsuit was filed.</p>
<p>You would say they're different cases.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: They would... I think they require... they would be traditional equal protection claims, not...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, that's what... why isn't this the second?</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: Because they have alleged that they are proceeding under Esmail, which is not... which is a vindictiveness...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, they allege that the vindictiveness was caused by the fact that they filed this earlier lawsuit.</p>
<!-- james_l_deano--><p><b>Mr. DeAno</b>: That's correct.</p>
<p>They...</p>
<p>Argument of Irving L. Gornstein</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. DeAno.</p>
<p>Mr. Gornstein, we'll hear from you.</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>We have explained in our brief why we believe this is not an appropriate case for resolving the class-of-one issue, but if the Court reaches the question, it should hold that a class-of-one claim is subject to the same analysis as other equal protection claims.</p>
<p>That means that unless there is a fundamental right, or a suspect classification involved, rational basis review applies, and under rational basis review the relevant inquiry is an objective one into whether there is any conceivable rational basis for the alleged difference in treatment.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What if they had a class of litigants against the city, and they had a rule that anybody who sues the city, will get disparate treatment, 33 feet instead of 15 feet, and that's their policy.</p>
<p>Would that be an equal protection challenge?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: Justice Stevens, it would.</p>
<p>It would be... it would implicate the fundamental right which this Court has recognized...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Why isn't that this case?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: Well, it is this case, and that's one of the reasons that we told... suggested to the Court...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Oh.</p>
<p>So you agree with respondent, then?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: that we suggested to the Court that it not examine the class-of-one issue, because the class-of-one issue really arises when there is no suspect classification and no fundamental right involved, but this happens to implicate the fundamental right to file a lawsuit, which this Court has recognized as being protected by the First Amendment as a component of the right to petition for a redress of grievances.</p>
<p>If the...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. DeAno said that's not the theory of the plaintiff's complaint.</p>
<p>They didn't make retaliation for filing the litigation the basis for the lawsuit.</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: They actually did, in their factual allegations, allege that the basis for the retaliation was the filing of the lawsuit, and that is in Joint Appendix 10, allegation number 27.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, what if you decide that you're going to treat this person differently because they've filed a lawsuit against the village, but it turns out there's a perfectly rational basis for treating them differently?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: Mr. Chief Justice, in that case, when you have a First Amendment right at issue, the sequence of events is dictated by this Court's decision in Doyle, which says that the plaintiff has the burden to show that a motivating factor in the decision was the exercise of First Amendment rights and at that point, if the plaintiff establishes that initial burden, then the burden shifts to the defendant to show that the same decision would have been reached even the... even in the absence of the consideration of the protected activity.</p>
<p>But where there is no fundamental right at stake, and that is a hypothesis of the question presented, the only question is whether there is a conceivable rational basis for treating the plaintiff differently from others and, if there is, the inquiry ends.</p>
<p>You do not inquire at all into the actual subjective motivations for the decision.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: So under the Doyle approach, my hypothetical, would a court say, yes, this is a prima facie denial of equal protection because of 50 feet versus 10 feet, and the respondent has come up with a perfectly good explanation of why, but we also find that the motive for doing it was not the rational basis, that they simply wanted to get this person because they filed a lawsuit, and kind of dug up the rational basis later.</p>
<p>Then what happens under Doyle?</p>
<p>We would have done it anyway, so...</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: This Court recently issued a per curiam decision this term, and I believe it's called Le Sage, in which the government took the action on the base of race and... in part, and the government was able to show to the satisfaction of the Court that the same thing would have occurred even absent the consideration of race, and in that event there is at least no award for past conduct.</p>
<p>There...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But you have to get beyond the dismissal of the complaint to reach that.</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: That's correct.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Le Sage was hardly a dismissal of the complaint situation.</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: That's correct.</p>
<p>I'm just talking about a hypothetical scenario where there's a First Amendment claim raised, and then it would be... it would usually require a trial to determine whether, in fact, the actual... the defendant would have taken the same action in any event.</p>
<p>Let me...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Should we begin our opinion in this case by saying there is no constitutional right for similarly situated persons to be treated equally under the law?</p>
<p>Is that our opening line?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: There is a constitutional right for people who are being treated equally... who are similarly situated, in fact, to be treated equally, but how the Court approaches that question depends on whether there's a suspect classification or a fundamental right involved.</p>
<p>If neither of those are involved, then the relevant inquiry is, is there any conceivable rational basis for treating differently plaintiff from the persons that the plaintiff alleges to be similarly situated.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Is that necessary to reduce the number of suits filed in Federal court, to reduce the intervention of courts in routine governmental actions?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: That is the...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Are we compromising the basic principle by saying that?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: No, because I think the basic principle that the Court has established is... under rational basis review is a baseline of protection, but only against those classifications, or those different... intentional differences in treatment that lack any conceivable rational basis...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, why...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If you're a county council and the board of commissioners said, we're going to bury this application because we just don't like this guy, you tell them that that is constitutionally permissible?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: I do not.</p>
<p>I tell them that there should be a conceivable rational basis for that decision, and that that is not an impermissible way to proceed.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And that you would propose to conceive one.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: But when the case comes to court, then the question is whether there's a conceivable rational basis and, if there is under this Court's decisions in Fritz and in Beech, then the inquiry is at an end.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What about in every case of defamation, libel, intentional torts committed by a State officer, breach of contract, where let's assume the State's wrong in all those cases?</p>
<p>Now, those are all illegal activities, so I don't know what the rational basis would be.</p>
<p>Now, does every one of those actions become an Equal Protection Clause action?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: No, because there are two components to the equal protection cause of action.</p>
<p>First, as Snowden v. Hughes had said, there has to be an intentional difference in treatment between the plaintiff and others who are alleged...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Well, there is in every such case.</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: And then, at that point, then all... the inquiry is really a very simple one into whether there is any conceivable, rational basis...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And what could there be in cases where the government's committed an intentional tort, or intentionally breached a contract?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: Because there... I could hypothesize ones in particular cases that may come up.</p>
<p>For example, in this case let's put aside the First Amendment for a moment.</p>
<p>It may be that somebody could establish that there was... somebody was out to get somebody, but if there was a conceivable rational basis such as the one that the petitioner is suggesting here, that unlike every other person in this town, this person is asking for access for water from a nonpublic road, that could supply a conceivable rational basis for treating that plaintiff differently from everybody else in the village.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And the result is otherwise if race is the basis, because of history, the core principle of the Equal Protection Clause, or why?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: Yes.</p>
<p>In certain limited situations the Court has concluded that motive inquiries are essential to protect against the most invidious forms of discrimination and protect the most fundamental rights, but when those rights are not implicated, then rational basis review applies, and that is supported, really, by three related...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Let me just interrupt with one question.</p>
<p>Why does the fact that a nonpublic road is involved explain the disparate treatment between 15 feet and 33 feet?</p>
<p>How can that possibly explain that?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: Justice Stevens, it may or may not explain it.</p>
<p>I suppose the possible...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It has to be a rational basis for...</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: It does, and the possible explanation...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: and on its face it isn't rational.</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: The possible explanation would be that the city has a policy for some reason that it does not want to furnish access to people for water over roads that are not their own.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: That policy is surely not disclosed in the complaint.</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: I'm... Justice Stevens, I wasn't suggesting that the complaint itself doesn't state a claim.</p>
<p>It may or may not state a claim.</p>
<p>I think at this stage of the proceedings that's not the question before the Court, whether this complaint does or doesn't state a class-of-one claim.</p>
<p>The question is whether a person in a class of one can state a claim.</p>
<p>I think all the Court has to say if it gets to this question is that yes, a person in a class of one can state a claim, but unless... if there's no fundamental right or suspect classification involved, only by showing there's no conceivable rational basis for treating the plaintiff differently from others who are similarly situated.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So the complaint has to conjure up every conceivable basis and negate it?</p>
<p>That's what the pleading is supposed to look like?</p>
<!-- irving_l_gornstein--><p><b>Mr. Gornstein</b>: I would not say that, Justice Ginsburg.</p>
<p>I think the complaint can state the facts that show that they are apparently being treated differently from other... others who are similarly situated.</p>
<p>Were it not for the one paragraph in the complaint the petitioner mentioned which suggested a possible rational basis, the complaint clearly would have stated a claim in our view, but it is by raising in the complaint itself a possible rational basis that the issue arises as to whether you can dismiss the complaint here.</p>
<p>Argument of John R. Wimmer</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Gornstein.</p>
<p>Mr. Wimmer, we'll hear from you.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>Before I get into the merits of the arguments that have been made on behalf of the Village of Willowbrook, I'd like to address the matter of what questions are properly before this Court in this case.</p>
<p>As the Court is aware, there were two questions raised in the petition for a writ of certiorari, the first being whether the Equal Protection Clause gives rise to a cause of action on behalf of a class of one where the plaintiff has not alleged membership in a vulnerable group, but rather that ill will caused the government to treat her differently from others similarly situated.</p>
<p>The second question was whether the government conduct alleged in Mrs. Olech's amended complaint meets the standard to state a cause of action on behalf of a class of one, assuming that the Equal Protection Clause protects such individuals.</p>
<p>Now, this Court in this case granted certiorari limited to question one, and what that means, I believe, is that arguments that fall within the scope of question two are not properly before this Court because this Court has in effect denied certiorari on question two, and we've cited the case of Missouri v. Jenkins from this Court, where there was a limited grant of certiorari on one of two questions, and in that case, which was a school desegregation case, the State made arguments that really fell within the scope of the question which had not been... on which certiorari had not been granted, and this Court said that those questions would not be considered.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but the discussion of question 1 may involve some... you know, rather than a purely hypothetical discussion might involve discussion of question 2.</p>
<p>That's not to say question 2 is before the Court, but I don't know that you can totally separate them.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: I don't know that they can be totally separated.</p>
<p>I know in Missouri v. Jenkins the second question was whether the tax increase ordered by the district court in the school desegregation case violated Federal-State comity.</p>
<p>The first question was whether the remedy was too broad, and when the State tried to argue that it violated Federal-State comity because the remedy was too broad, this Court indicated that that wouldn't be within the scope of the grant.</p>
<p>I think in this case when the village argues that Mrs. Olech's specific amended complaint failed to sufficiently allege that there was not a rational basis related to a legitimate government interest, that doesn't go to whether the Equal Protection Clause protects a class of one.</p>
<p>That falls within question 2, whether this particular amended complaint meets the standard to state a cause of action for violation of the Equal Protection Clause, assuming that that clause protects such individuals.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: But as to question 1, it talks about a class of one, and the complaint itself reveals that they're a class of five, at least, so wouldn't it be a totally hypothetical advisory opinion to answer question 1 in the context of a case that doesn't raise it?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, I don't think it would be an advisory opinion necessarily, because although there are five people involved, I think the principal the class of one... the distinction is between a class of one and a vulnerable group.</p>
<p>Whether there's two, or five, or one, I think the same considerations would apply if it's not a vulnerable group, as stated by the village.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Mr. Wimmer, did you represent Ms. Olech...</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Yes.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: at all times below?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Yes, Your Honor.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: And you drafted the complaint?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: I did.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Then why didn't you include the theory that Mr. Deano suggested may have been okay, that is, it was retaliation for exercise of their First Amendment right to sue the village?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, Your Honor, I did state in paragraph 27, and this is on page 10 of the appendix, that the defendants treated plaintiff Grace Olech and Thaddeus Olech, Howard Brinkman, and Rodney C. Zimmer and Phyllis S. Zimmer differently from other property owners in the Village of Willowbrook by demanding the 33-foot easements and the 66-foot dedicated street as a condition of the extension of the water main because of the ill will generated by the State court lawsuit, and in an attempt to control storm water drainage in the vicinity to the detriment of plaintiff Grace Olech and Thaddeus Olech and other plaintiffs in the State court lawsuit by the use of ditches and swales along Tennessee Avenue.</p>
<p>So when the village says that the complaint alleges that they wanted the 33 feet for all these good purposes, that's not what it alleges.</p>
<p>It alleges they made those demands out of ill will caused by the lawsuit.</p>
<p>The paragraph cited by the village simply says they sent the proposed easement which would give them the right to do all those things, but the complaint does not allege that that is why the village made those demands.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: What if we had a somewhat different situation here, where we're not talking about the demand for easement dedication, but whether the village is going to contract with a particular person, or take bids from various persons to do the paving in this area, and the village says, well, one person we're not going to contract with is X, because X has a reputation for suing everybody, for just being a very litigious person constantly taking advantage of his right to petition.</p>
<p>Is that impermissible under the First Amendment?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, if the lawsuit that was brought was meritorious, I think it would be.</p>
<p>I think if there had been a lot of... and I think about the cases cited by the government in this case, California Motor Transport, and the other cases cited by the government which indicate that if the lawsuit is not... doesn't have probable cause, or if it's a harassing lawsuit, or something like that, then the First Amendment implications aren't there.</p>
<p>In this case, the State court lawsuit, we prevailed and got a judgment against the Village of Willowbrook, so...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: So you say that the First Amendment does protect someone who the county or the village simply doesn't want to deal with because they have a propensity to litigate at the drop of a hat.</p>
<p>Sometimes they win, sometimes they lose.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, I think if... it would come down to what the propensity to litigate in cases that are not valid, that would probably be a proper consideration for the village to take into account.</p>
<p>That's not what happened here, though, because the one case was a valid case and went to judgment.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What was your theory?</p>
<p>If we go to this other issue, I can see two situations.</p>
<p>1, a plaintiff says, there is no rational basis conceivable, and they're motivated by ill will.</p>
<p>Situation 2 is, the plaintiff says, they had a brilliant reason, a perfect reason, an outstanding reason.</p>
<p>However, they were motivated by ill will in reality.</p>
<p>Now, does this case raise issue 2?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: I don't believe so, Your Honor.</p>
<p>We alleged in the complaint that the decision was... and this is on page 10... wholly... strike that... irrational and wholly arbitrary, and we've also alleged that it was based on ill will and I think that, as Judge Posner said in the court of appeals opinion for the Seventh Circuit, the tincture of ill will will not render government action unconstitutional if it would have happened anyway.</p>
<p>What we have here is a situation where it was irrational because the village attorney admitted that they didn't need a 66-foot street dedication to install and maintain a water main, and they didn't demand it of other people in the village.</p>
<p>With respect to the argument that Mrs. Olech's situation is somehow unique, there's no basis in the complaint to conclude that that is the case, and that there are not other nondedicated streets in the village.</p>
<p>Under Hishon v. King & Spaulding this Court is to construe... or all courts are to construe complaints favorably to the plaintiff and reach all reasonable inferences in favor of the plaintiff, and what the village is asking you to do is the exact contrary, to assume that this was the only dedicated street and make conclusions on that basis.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well now, if a complaint were to allege that the city took some... singled out the plaintiff for some negative action solely because the city didn't like the person for some reason, the mayor hated her, and it turns out, though, that there is a perfectly rational basis that the Court can think of for the mayor's action, is there a lawsuit just because the mayor, in his heart of hearts, hated the plaintiff and wanted that outcome, even though we can derive a perfectly rational basis?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Probably not, Judge, although this Court did say in the City of Cleburne v. Cleburne Living Center that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate State interests.</p>
<p>I think in this case, where there was no conceivable rational explanation for the city's disparate treatment of Mrs. Olech, and she's alleged that they were out to punish her for filing a meritorious lawsuit against the village, that there's enough.</p>
<p>But I do think that this whole concept of whether the particular amended complaint in this case adequately states a cause of action is not properly before the Court.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I think you know what's bothering us, that if we accept your theory, then in those thousands, tens of thousands of zoning decisions where local personalities are involved and difficult discretionary judgments are made, it's going to always be followed by a lawsuit of ill will.</p>
<p>And we simply are concerned about having the Federal courts become the ultimate policeman of the zoning process.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Your Honor, I think there's sufficient protection from municipalities or government in the fact that the plaintiff has to show that there was no rational basis, no conceivable rational basis related to legitimate government interests for the conduct.</p>
<p>That's going to eliminate a lot of frivolous lawsuits against municipalities.</p>
<p>If a municipality can have an affidavit, we did it for this reason, and totally logical and rational, and advances a legitimate government interest, the case is over.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They don't have to say that.</p>
<p>They don't have to say we did it for this reason.</p>
<p>They have to say, we might have done it for this reason... right?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: That's correct.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So in this respect you're in agreement with the government's theory of the case?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: I agree that a rational basis related to a legitimate government interest for the disparate treatment would indicate that there was no equal protection violation.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: A conceivable basis.</p>
<p>A conceivable basis.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Based on the facts that are before the Court, yes.</p>
<p>I don't think there is one here, because that also runs into the rule that in Hishon v. King & Spaulding, if there are any set of facts consistent with the complaint by which it could be concluded that there was no rational basis related, or no conceivable rational basis related to a legitimate government interest, then the case should go on.</p>
<p>With respect to the question on which this Court granted certiorari, whether the Equal Protection Clause protects a class of one...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Do we have a class of one?</p>
<p>What's your position on that?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: That the Equal Protection Clause... oh, do we have a class of one in this case?</p>
<p>That's the way it was argued.</p>
<p>There certainly are five people, as the government has pointed out, that filed the State lawsuit, and they were all treated differently by the Village of Willowbrook.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: This objection that a class of five is not a class of one, was this made at the petition stage in the opposition to certiorari?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: I don't believe so.</p>
<p>I did object to the presentation of some questions, but not that.</p>
<p>With respect to the question of whether the class of one is protected...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I ask you just a variation...</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: of Justice Scalia's question?</p>
<p>In the trial proceedings, was there an objection to the complaint made on the basis that there was only a class of one involved?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: No.</p>
<p>As a matter of fact, at the district court the Village of Willowbrook acknowledged that a cause of action for violating the Equal Protection Clause could be brought on behalf of a class of one.</p>
<p>They took that position but argued that...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Because that was a law of the Seventh Circuit?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Right.</p>
<p>They did not say we want to preserve another issue for appellate review.</p>
<p>With respect to the question on which the Court granted certiorari, I think it's important to recall that governments derive their power from the consent of the governed, and that the legitimacy of government action is based on that.</p>
<p>In our country the consent of the governed is set forth in the written Constitution, and I think in interpreting the language of the Constitution, the language of that grant, it's important to adhere to the language that the people have chosen to use, especially when construing a protection that the people saw fit to secure for themselves, and that no court should engraft limitations on the application of a protection like that that the people didn't see fit to put in it, because then what would happen to the consent of the governed, and the legitimacy of the exercise of government power?</p>
<p>As Justice Story said in Martin v. Hunter's Lessee, which I cited in my brief, the words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.</p>
<p>With that background, if one looks at the language of the Equal Protection Clause, nor shall any State deny to any person within its jurisdiction the equal protection of the laws, I think there's no basis to conclude that that provision should be limited in its application to someone who says I'm being discriminated against because of membership in a group or class.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And what is your answer, Mr. Wimmer, to the argument that you have pled yourself out of court by making your statement of the class of one or five but then including in the complaint a rational basis for seeking more land, that is, they wanted to make the street?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, I don't think I did include in my complaint a rational basis for the Village of Willowbrook to treat Mrs. Olech differently from other property owners.</p>
<p>When one decides whether there's a rational basis related to a legitimate government interest, it should not be considered in the abstract, and the village can always say, we wanted to build a road here.</p>
<p>The question is, was there... and in the case I cited, Sioux City Bridge Company, where one taxpayer's property was assessed higher than everybody else's, the government can only say, we had a rational basis to assess his property 100 percent.</p>
<p>That's what it was worth.</p>
<p>You have to look, is there a rational basis related to a legitimate government interest for the difference in treatment?</p>
<p>They may well have wanted a road, but if they didn't demand of everyone who wished to have municipal water a road, then there was no rational basis to treat her differently from everybody else in the city by demanding a road.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I ask you a hypothetical about a concession you made earlier?</p>
<p>Supposing you had a complaint that alleged vindictive discrimination, 33 feet because they hated the person, and the city filed an answer and said yes, that's the real reason we did it, but our lawyer has told us we might have done it for this rational reason.</p>
<p>We didn't do it, but we might have.</p>
<p>Who would win in that case?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, I think...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Is there a stupidity clause in the Constitution...</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: somewhere we could get them on, or something?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, I think one could argue convincingly in light of Your Honor's language in the Cleburne case that if the city admitted that they were doing it to punish a person, a politically unpopular person or group, that the plaintiff would prevail.</p>
<p>That's not a legitimate government interest.</p>
<p>This Court has stated...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And it's not a totally hypothetical question, either, to respond to my good colleague, because sometimes you take depositions before the answer is filed, and the depositions make it perfectly clear that was the real purpose, but then they conceive of a legitimate purpose later.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, I think, as I say, that a convincing argument can be made under Cleburne that if they made that concession, that it was not... it was what this Court has said to be not a legitimate government interest that motivated them to take that action, that there would be an equal protection...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Why, if they only make the concession?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Maybe there's a presumption...</p>
<p>Why not litigate it, then?</p>
<p>If the fact that they did it out of maliciousness should justify judgment for the plaintiff, then we should litigate the point, but why should we just allow it when they admit it?</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, that's a good question, although in this case...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It's a very good question.</p>
<p>I...</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You want to throw us right back into the pool that we thought we had jumped out of.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, in this case, where the complaint does not show a rational basis related to a legitimate government interest for the disparate treatment, I think it is proper to inquire into the motive, however, Judge... or, I'm sorry, Your Honor... because I have to show that there was a denial of equal protection.</p>
<p>That connotes purposeful conduct on behalf of the village, so I think that an allegation that they were retaliating against them for filing a lawsuit shows that it was not simply uneven law enforcement, or an accidental disparate treatment, but an...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I suppose the way Judge Posner's view could be explained is that there is a presumption that the government acted for a reasonable purpose, and if there's specific evidence to the contrary, then the case can proceed and it just becomes a pleading case.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: Well, yes.</p>
<p>At this point I have alleged that it was irrational.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I thought you had both.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: And...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No conceivable rational purpose, and animus.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: I believe I do, Your Honor.</p>
<p>I allege...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And if you get rid of the former, I guess we have a Federal lawsuit even if the land was set aside as coastal land, you know, a wonderful reason, has the most beautiful view in the State, but it turns out, it's alleged, that the real reason he did it is, he didn't like the landowner.</p>
<p>I mean, once you get rid of a conceivable, rational basis, you open the court to lawsuits no matter how good the reason was, as long as there's an allegation of animus.</p>
<!-- john_r_wimmer--><p><b>Mr. Wimmer</b>: That's right, although I think in this case that's not what we have, since I've alleged both, and the allegations of the complaint have to be accepted as true at this point.</p>
<p>Briefly, with respect to exhaustion of remedies, that's another question which I believe is not properly before the Court for a number of reasons.</p>
<p>It was not ever mentioned prior to the brief on the merits by the village.</p>
<p>It was not mentioned in the district court, where I could have amended the complaint if there was a technical deficiency, and also, even if Your Honors intend to address the exhaustion of remedies issue, I believe the Court has already held at least two times that one need not exhaust his State remedies in order to state a claim for a denial of the Equal Protection Clause.</p>
<p>And on this rationally related argument, what this really comes down to is whether it was rationally related to a legitimate State interest for Willowbrook to demand private property rights of Mrs. Olech and the other plaintiffs in the State court case as a condition of receiving running water when those rights were not demanded of others as a condition of receiving running water, and where the private property rights were not required for installation and maintenance of the water main.</p>
<p>That's what the complaint says, and I think that question really answers itself.</p>
<p>There's not a rational basis based on the face of the complaint.</p>
<p>One other point the village makes is, they argue that the road was already in existence, and that they simply desired to establish their right to maintain it.</p>
<p>The complaint does not allege how wide the road is, and since it's not in the record I'm not going to state how wide it is, but I think if that's a significant fact the inference should be drawn in favor of the plaintiff that the road is substantially narrower than the 66-foot road that they were demanding be put in.</p>
<p>So I'd like to thank the Court.</p>
<p>In conclusion, I believe that the Equal Protection Clause applies to everybody, whether they're a member of a class or group or not.</p>
<p>It certainly applies to Mrs. Olech.</p>
<p>Thank you.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Wimmer.</p>
<p>The case is submitted.</p>
<p>The honorable court is now adjourned until tomorrow at ten o'clock.</p>
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The Oyez Project </div>
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Fri, 09 Jan 2009 14:50:20 +000058736 at http://www.oyez.orgRomer v. Evans - Oral Argumenthttp://www.oyez.org/cases/1990-1999/1995/1995_94_1039/argument
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<a href="/cases/1990-1999/1995/1995_94_1039">Romer v. Evans</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Timothy M. Tymkovich</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in Number 94 1039, Roy Romer v. Richard G. Evans.</p>
<p>Mr. Tymkovich.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Mr. Chief Justice and may it please the Court--</p>
<p>This case involves a challenge to the authority of a State to allocate certain law making power among its State and local governments.</p>
<p>Colorado's Amendment 2 reserves to the State the decision of whether to extend special protections under State law on the basis of homosexual or bisexual conduct or orientation.</p>
<p>The sole question here is whether in this facial challenge that statewide reservation of authority should be nullified under this Court's prior holdings in James v. Valtierra and Hunter v. Erickson.</p>
<p>That question can be authoritatively resolved for two core reasons.</p>
<p>First, the logic and holding of James is indistinguishable and controls here.</p>
<p>Secondly, the rationality of the substantive policy judgment that has so far motivated Congress and other States in deciding not to extend title VII protections or other... to homosexuals and bisexuals similarly supports the decision of Colorado to reserve that question to itself on a statewide basis.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, Mr. Tymkovich--</p>
<p>--It may be, counsel, that we have to reach that question, but it seems to me there is a predicate or a preliminary matter that we ought to discuss at some point during your oral argument.</p>
<p>Usually when we have an equal protection question we measure the objective of the legislature against the class that is adopted, against the statutory classification.</p>
<p>Here, the classification seems to be adopted for its own sake.</p>
<p>I've never seen a case like this.</p>
<p>Is there any precedent that you can cite to the Court where we've upheld a law such as this?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, in James v. Valtierra the Court was presented with a question involving a State constitutional amendment that also identified a classification... in that case, low income persons... and in analyzing the question there, the Court fundamentally looked at whether Hunter v. Erickson should extend beyond the specific racial context in which it was decided.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: But the whole point in James was that we knew that it was low income housing, and we could measure the need, the importance, the objectives of the legislature to control low cost housing against the classification that was adopted.</p>
<p>Here, the classification is just adopted for its own sake, with reference to all purposes of the law, so James doesn't work.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: The classification in James did involve a reference to a specific subset of persons, an identifiable group under the theory of the Colorado supreme court.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: I know it adopted a theory of a group, but it was with reference to a specific legislative objective... low cost housing.</p>
<p>Here, the classification is adopted to fence out, in the Colorado supreme court's words, the class for all purposes, and I've never seen a statute like that.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, the objective here was to resolve an issue of whether or not to extend special protections to homosexuals and bisexuals, so the issue resolved here--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, Mr. Tymkovich, the language of the amendment I guess has never been actually interpreted by the Colorado courts.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --The Colorado--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Has it been construed or interpreted as yet, in your view?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Your Honor, this is a facial challenge, and the provision was enjoined before it ever went into effect.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Right.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: For bases of this appeal, the Colorado court did make an interpretation that at least to the extent that it preempted local laws and State provisions, that's all the farther it went.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, does it mean that homosexuals are not covered by Colorado's laws of general applicability?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: No, it does not.</p>
<p>In the--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How do we know that?</p>
<p>I mean, the literal language would indicate that, for example, a public library could refuse to allow books to be borrowed by homosexuals and there would be no relief from that, apparently.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --There are a couple of reasons.</p>
<p>First, in the second opinion of the Colorado supreme court, what I'll call Evans 2, the Colorado supreme court did, in footnote 9 of that opinion, make reference to some general laws of general applicability and found that those would not be displaced by Amendment 2.</p>
<p>Secondly, the--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Does it displace courts in Colorado?</p>
<p>Can a court hear a 1983 case in Colorado--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Absolutely.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: --dealing with discrimination--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Yes, it may.</p>
<p>There--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: --if there's a homosexual plaintiff?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --It absolutely changes no provisions under Federal law in access to the court or vindication of one's equal protection rights, nor does it affect the State--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, how do we know that?</p>
<p>I mean, I don't read anything in the opinion that tells me what the thing means.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --The construction that we have offered is well supported by the legislative history and the intent of the proponents.</p>
<p>We think that the law clearly on its face refers to State enactments and State policies and does not displace any Federal law or policy.</p>
<p>The ballot analysis which we presented in our appendix to the petition makes it clear that this was not intended to extend beyond State and local laws, so it's our view that under the Supremacy Clause as well as under a plain interpretation of the amendment, that Federal law would not be disrupted.</p>
<p>Moreover--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Tymkovich, even focusing on State law alone, Federal law is of course supreme.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Yes.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And as Justice Kennedy pointed out, James v. Valtierra dealt with one issue, low cost housing.</p>
<p>There were dozens of other ways in which to improve the status of the poor, to fight against the blight of poverty.</p>
<p>But here, it's everything... thou shalt not have access to the ordinary legislative process for anything that will improve the condition of this particular group... and I would like to know whether in all of U.S. history there has been any legislation like this that earmarks a group and says, you will not be able to appeal to your State legislature to improve your status.</p>
<p>You will need a constitutional change to do that.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, it's not unprecedented in the sense that it's a preemptive law.</p>
<p>It is unusual to the extent that two strands of the law come together, but the Court's cases have made it clear that it's appropriate to withdraw authority over certain issues from a local level to a higher level of State government.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Mr. Tymkovich, what about laws prohibiting bigamy, or prohibiting homosexuality, or homosexual conduct?</p>
<p>Incidentally, how do you interpret the bisexual orientation language, homosexual, lesbian, or bisexual orientation?</p>
<p>Does that require any conduct, or is it just a disposition?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: It's unclear from this text.</p>
<p>However, the reason that that language is in Amendment 2 is because this was a plain response to certain laws that had been enacted by State and local government that used the term bisexual, but it could include either conduct or orientation.</p>
<p>Again, it's unclear how you determine--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I want to know what you mean by... what is meant by... if all orientation means is someone who engages in homosexual, lesbian, or bisexual acts, then you have plenty of precedent in response to your question, namely State laws that absolutely criminalize such activity... bigamy, homosexuality--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --That's right, the--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --Colorado has no law that prohibits consensual homosexual conduct.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --No.</p>
<p>Colorado repealed its sodomy law in 1972, but to answer--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Justice Scalia's question, it is unclear whether conduct defines the class.</p>
<p>Many courts have so held in looking at the issue of a classification involving--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: --Are you suggesting--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --You have no position on it?</p>
<p>You have no position on it?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Yes.</p>
<p>We believe that conduct is the best indicator of--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, is it the sole indicator?</p>
<p>Are you representing to this Court that Colorado's position is that the class defining characteristic is conduct as opposed to preference or proclivity or whatnot?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --No, Your Honor, because that was immaterial to the litigation below.</p>
<p>There was an attempt by the respondents to prove a suspect class--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well then we have to do one of two things.</p>
<p>We have to assume that orientation means something more than conduct, or if there were a serious question, I suppose we would have to send it back and ask the courts of Colorado to tell us, but is there a serious question?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I don't think that there's a serious question that--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So that orientation means something more than conduct, and we have to assume that in ruling on this challenge, don't we?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I think that that doesn't change the legal position of the State with respect to this classification.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: May I go back to one point that you have made, and you've made it more than once about the... I guess about the legal position of the State.</p>
<p>You've referred to the issue as the permissibility of withdrawing subject matter from political consideration at a certain level.</p>
<p>You said it has been reserved for a higher level of political action.</p>
<p>It seems to me that there are two things wrong with that characterization.</p>
<p>One of them has already been brought up, and that is, this is not merely a reservation for this particular subject to be dealt with, for example, by statewide referendum.</p>
<p>It is in fact a provision that no law may be made addressing, or addressing for protective purposes this kind of discrimination.</p>
<p>The second thing that seems to me inaccurate about the characterization you're giving us is that this is not merely a reservation of a subject matter.</p>
<p>That is not the subject of the claim.</p>
<p>The claim is that there is a discrimination in the reservation of the subject matter, or a discrimination in the provision for eligibility, or exercise of legislative power.</p>
<p>It seems to me that as you characterize it, it would sound like a due process challenge, but in fact it's an equal protection challenge, because there's a discrimination involved.</p>
<p>Isn't that correct?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, there is a classification involved, but there is no invidious discrimination.</p>
<p>All the fact that the law--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What does invidious mean?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I think it means an arbitrary or irrational classification, and that is not the case here.</p>
<p>I think we've shown that there are reasons for the classification.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But in any case, you recognize that this is not the same problem that might be raised if a certain subject matter, e.g., discrimination, were reserved for legislative action at the State level rather than local level.</p>
<p>This is a different problem, isn't it?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: I think it's an equal protection problem, but the question is, does it impinge on a suspect class here--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Right, but it's--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --or has there been some type of fundamental--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: --a different problem from a mere reservation of a broad spectrum of action for political action at one level rather than another.</p>
<p>It's a different problem from that, is it not?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --No, Your Honor, because of the way the lower court has--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, are you saying... I'm sorry.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --has characterized the fundamental right here.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, are you saying then... maybe this is what you're saying, that if the equal protection challenge is in fact recognized or vindicated here, that there is no way to prevent this from in effect ballooning into a due process challenge, that if they win this, then a different kind of claim will also succeed, i.e., a claim that a certain subject matter, discrimination or not, must be dealt with for purposes of Federal law at a certain level of government?</p>
<p>Is that your argument?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: No, Your Honor.</p>
<p>We don't think--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: It's not a slippery slope argument.</p>
<p>You're not saying we go from... if an equal protection challenge wins here, a due process challenge necessarily wins too.</p>
<p>You're not saying that.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --There's been no due process challenge in this case--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But that's not what you're arguing.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --and there is--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But that's not what you're arguing, is that--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --That's correct.</p>
<p>There is a slippery--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --But you said the ban extends to State legislation as well as to local legislation here.</p>
<p>It's not a question of who can do it, but the State itself can't do it through the ordinary legislative process.</p>
<p>It will take a constitutional change.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Well, the initiative is the ordinary political process in our State.</p>
<p>We've had many repeals in other substantive matters on our statewide ballot.</p>
<p>We had four on the... four repeal measures on the ballot the same year that Amendment 2 was enacted.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Mr. Tymkovich, I was trying to think of something comparable to this, and what occurred to me is that this political means of going at the local level first is familiar in American politics.</p>
<p>In fact, it was the way that the suffragists worked.</p>
<p>When they were unable to achieve the vote statewide, they did it on a cities first approach, and I take it from what you are arguing that if there had been a referendum that said no local ordinance can give women the vote, that that would have been constitutional.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: No, Your Honor.</p>
<p>I think that that--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: What's the difference?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --classification would be analyzed under this Court's equal protection jurisprudence on a suspect--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Well, cast your mind back to the days before the Nineteenth Amendment.</p>
<p>[Laughter]</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I think the Court would apply the traditional equal protection analysis and--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And what would have happened?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --They would have determined whether or not there was a fundamental right to vote that had been impinged on or was--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But there was no right to vote for women.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Right, or under the Fourteenth Amendment, or whether women were a suspect class entitled to some heightened scrutiny in the circumstances.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And if they weren't?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: If they weren't, the Court would--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Then it would have been constitutional.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --enact a rational basis type of review.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Yes, and that's what you're urging here.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Yes.</p>
<p>We're urging for this classification, that the Court engage in a rational basis type of review.</p>
<p>No court has found homosexual orientation or conduct to be a suspect classification.</p>
<p>Therefore, the traditional equal protection model should be applied in this case.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. Tymkovich, what is now required under Colorado law, assuming that the constitutionality of this is upheld, in order to change that provision?</p>
<p>It would be what, a statewide referendum?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: That's right, Your Honor.</p>
<p>There would be an initiative, or a referred measure from our State legislature, and it would be placed on the ballot in the same fashion that the Amendment 2 was placed on the ballot in the first instance, so there would be that mere opportunity for the opponents of Amendment 2, just like there were for the proponents.</p>
<p>And to further answer Justice Ginsburg's question, what the respondents here are saying is that those who oppose certain type of special protections here cannot get their policy preference vindicated through the legislative process unless they are able to successfully preempt or repeal such laws at the local level.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: When you talk about special protection, this brings me back to an earlier question about discrimination in libraries.</p>
<p>What... how do you interpret the term, minority status quota preferences protected status?</p>
<p>You mean... what does that mean?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Protected status would be a particular affirmative positive piece of legislation that granted some type of protection--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Special protection beyond what--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Beyond the Fourteenth Amendment baseline.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --So why wouldn't that have been your answer to the library hypothetical that was produced earlier?</p>
<p>Any... no homosexual can be treated differently from other people.</p>
<p>He simply cannot be given special protection by reason of that status.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: That's right.</p>
<p>Amendment 2 is simply a Fourteenth Amendment--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I ask how that works in the public accommodation area?</p>
<p>If a hotel or a restaurant... at common law you get some kind of an innkeeper's duty to take everybody in.</p>
<p>Could an innkeeper refuse accommodations to a homosexual who was not engaging in any homosexual conduct but had admitted that he had that type of tendency?</p>
<p>Could an innkeeper under... in Colorado just say, I'm sorry, we don't rent rooms to people like you?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --To the extent there was some tort law of general applicability in those circumstances about innkeeper's duty, we don't think that Amendment 2 would knock that out.</p>
<p>To the extent--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So you would say the public accommodations protection is still available to homosexuals.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Amendment 2 would carve out any special protections in the public accommodation area that had been extended to homosexuals--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What would the rule be in Colorado?</p>
<p>How do you understand the law there?</p>
<p>Now, would a homosexual have a right to be served in a restaurant?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --A homosexual would not have any claim of discrimination or special liability theory in a private setting after Amendment 2.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Even in the public accommodation area.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Unless the Court... and again, we haven't had a full construction of Amendment 2 yet from our State courts.</p>
<p>Unless a State court construed the innkeeper's duty to be a law of general applicability to--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Do you know what the law of Colorado is on that point?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I do not.</p>
<p>I have not encountered that, Your Honor.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So we don't know whether homosexuals have a right to be served or not.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: That will be a question for the State courts interpreting Amendment 2.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But if they do have a right to be served, would that be an affirmative right, then, as in the distinction Justice Scalia was drawing, or would that be just being treated like everybody else?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: I think it would be treated just like any other characteristic or classification that has not gotten the special benefits of the civil rights law.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And being... having the right not to be refused a job or to rent on that ground is a special right.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Unless--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: It's not being just like everybody else.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --That would bring it into the range of private choice and private arrangements, unless there is some particular law that would disable that ability by private--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But there can't be such a particular law in Colorado.</p>
<p>I don't understand.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Unless Amendment 2 is repealed, or there is some general provision that might apply.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And one last question.</p>
<p>What is the rational basis for this statute?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: The purpose of this statute was to preempt State and local laws that extended special protections.</p>
<p>It was a response to political activism by a political group that wanted to seek special affirmative protections under the law.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, it went farther, because there were political groups that had already... as I understand it, Aspen had a protective statute of some kind.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: That's correct, Your Honor.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And it's... what is the rational basis for the people outside of Aspen telling the people in Aspen they cannot have that statute?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Amendment 2 covers a range of circumstances, not just the preemption of the local ordinances, but it did do that.</p>
<p>It also served as a--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What is the rational basis for the people outside of Aspen telling the people in Aspen they cannot have this nondiscriminatory provision?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --The rationale is any law of general preemption that wants to make a substantive decision, and the people here, the rational basis for that substantive decision in our view was a political response to what the people might have perceived as laws going too far or being too intrusive.</p>
<p>What this does is--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, the State of Virginia has a very broad State preemption doctrine.</p>
<p>Local governments do not have the power in Virginia that they do in many other places.</p>
<p>I suppose the rational basis for that is just that the people generally would prefer to have the rules set by the State at large rather than by local governments.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --That's correct, Your Honor, and there's nothing wrong, especially in this area of civil rights and statewide protections, in making that an issue of statewide concern, and that's simply what Colorado was--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But Mr. Tymkovich, doesn't that go back to the problem I tried to raise earlier?</p>
<p>You're saying that as a general matter certain laws can be determined as subject to action at one political level and not at others, but isn't the question here is, what is the rational basis for determining that affirmative protection for homosexuals cannot be dealt with at a certain level, whereas affirmative protection for the aged, for the handicapped, and so on, can be?</p>
<p>Isn't that what the rational basis has to address, and how does your answer to Justice Stevens address it?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Your Honor, that's a quintessential political judgment on how you provide relative protection to relative groups.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, it's a judgment that is made politically, but that doesn't state a rational basis.</p>
<p>I mean, if we were saying... if we were asking you this question, why should discrimination be dealt with in Colorado at the State level rather than the local level, or at the constitutional level, or whatnot, is that a denial of any constitutional right, and you said, no, that's a political choice.</p>
<p>Colorado... the people of Colorado can decide what level to deal with this problem.</p>
<p>That would, it seems to me, answer a substantive due process challenge, but that's not the question that's being asked here.</p>
<p>The question that's being asked here is, why is discrimination against one group dealt with under State law differently from discrimination against other groups, and your rational basis answer, it seems to me, has got to go to a justification for the classification.</p>
<p>It isn't enough simply to say, oh, well, that's what politics decided.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, that's not my response.</p>
<p>I think there are some particular discrete reasons also, and this is to answer Justice Ginsburg's question also.</p>
<p>This issue was seen as particularly desirable for a statewide uniform determination.</p>
<p>There's a question about the desirability of each local jurisdiction dealing with this issue, which I think raises some very fundamental and sensitive cultural, moral, political concerns for our State.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, it does, but are you getting any further than simply the answer, that's what they wanted, that's the result of the political process?</p>
<p>I don't see in your answer the kind of justification independent merely of majority will, which an equal protection classification question calls for.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, in addition to statewide uniformity, we've also advanced some reasons that show how Amendment 2 advances other liberty interests, and there are competing liberty interests that are, in fact--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What's the liberty interest that it advances?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --It promotes a zone of autonomy.</p>
<p>The State supreme court and the trial court found that religious liberty interests were advanced here, associational liberties were advanced here, and the Court simply made a determination below that they were not narrowly tailored, so--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Mr. Tymkovich, if this is an ordinary equal protection challenge and there's no heightened scrutiny, isn't it an adequate answer to Justice Souter's question to say this is the only area in which we've had a problem?</p>
<p>If localities started passing special laws giving favored treatment to people with blue eyes, we might have a statewide referendum on that as well?</p>
<p>Isn't one step at a time a normal response to equal protection?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --That's exactly what happened here, and the court--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, what is the problem?</p>
<p>I mean, what is the problem that you supposedly have been having?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I think the problem that the voters saw, they were presented with an opportunity to preempt and make a decision at a statewide level for laws that raise particular and sensitive liberty concerns.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: State... State subdivisions giving preferences which the majority of the people in the State did not think desirable for social reasons, isn't that the problem that was seen?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: That's right.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And if they should start giving preferences for some other reason that the majority of the State did not consider desirable... let's say, bigamy, special preferences to bigamist couples, there would be a law on that subject as well.</p>
<p>Isn't your answer, this is the only area where the people apparently saw a problem, which is enough for equal protection?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: It is, and this is an area where there have been piecemeal additions of special protections.</p>
<p>We've had--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: What is the special preference at stake here?</p>
<p>What is the special preference that a homosexual gets?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I think it creates a cause of action on the basis of the characteristic that's not available to the general population at large.</p>
<p>Homosexuals are entitled to every other protection of the civil rights laws, the criminal laws, the--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: You've just said that in... apart from whatever the common law might be, with this ordinance on... with this amendment on the books, a restaurant owner can say, sorry, I don't want to serve gay people, and what about... take a scarce resource.</p>
<p>Think of a public hospital that has a kidney dialysis machine, and the hospital says, we have to limit this, and one group that we're going to keep out, we're not going to have any gay, any lesbian person use this... use this facility.</p>
<p>Now, there would be, under this amendment, what recourse?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Well, first of all there's Federal law that may preempt, and secondly, there is an opportunity, as we construe Amendment 2, for the State to enact a policy that would treat all citizens the same in those circumstances rather than carve out a special--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But let's just have the law as it is right now.</p>
<p>There's a scarce resource.</p>
<p>There's a basis... there has to be some rules about who can use it and who can't.</p>
<p>That's the rule that the public hospital sets.</p>
<p>Under this amendment, that's okay, right?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --In this facial challenge, we don't know how the court is going to construe other potentially applicable State laws.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: How... I do have one question on that point which I'd like to ask.</p>
<p>The statute says, no agency shall adopt or enforce any policy whereby homosexual conduct, or whatever, orientation, shall be the basis of any claim of discrimination.</p>
<p>So if a police department says, there's been a lot of gay bashing.</p>
<p>It's our policy.</p>
<p>Stop it.</p>
<p>If the head librarian says, you're making gays sit... you're being mean to them and not letting them in.</p>
<p>Stop it.</p>
<p>If the health department says the same thing, if the insurance commissioner says the same thing, doesn't this word policy cover that, and if it doesn't cover it, what is it about?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: The government agencies that you've indicated could enact a general nonbias policy or require--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, no.</p>
<p>What they say is, they put up regulation 14.2.</p>
<p>There's been gay bashing here.</p>
<p>Stop it.</p>
<p>They put it more politely, but that's what they mean.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Amendment 2 would not prohibit that.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: It would not prohibit that.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: It would not prohibit--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Then what does the word policy prohibit?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Policy prohibits the enactment of some special entitlement--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, but give me an example.</p>
<p>What could it possibly be?</p>
<p>What is policy, if it isn't the policy of the department saying, do not discriminate against gays?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Mr. Tymkovich, I assume in your State you're not allowed to bash nongays either, are you?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --No.</p>
<p>The criminal law is--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So prohibiting the bashing of gays would not be a special protection, would it?</p>
<p>It would just be enforcing the general law.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Yes, and Amendment 2 does nothing to restrict the applicable--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Isn't that the response to Justice--</p>
<p>--But does it--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --That's right.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --Fine.</p>
<p>[Laughter]</p>
<p>But does it prevent... what... give me an example of what it prevents.</p>
<p>Does it prevent the police department, the librarian, the dozens of State agencies from putting up a piece of paper that says, policy it is our policy in this department not to discriminate against gays.</p>
<p>You're saying it doesn't prohibit that.</p>
<p>Then what does it prohibit?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: It prohibits any type of special protection or a liability claim that somebody might have under that policy.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: It seems to me that your answer is inconsistent to what the supreme court of Colorado said.</p>
<p>It said health insurance discrimination regulations are void.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: The health--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: That's... based on sexual orientation.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --The health... that regulation did carve out what would be construed as special protection--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: That's inconsistent with the answer you gave to Justice Breyer.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --I don't think so, Your Honor, because I thought he was talking about a law of general applica--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No.</p>
<p>Look, suppose Boulder, Colorado says, it is our policy in Boulder not to discriminate against gays.</p>
<p>They call it Boulder Regulation 14.2.</p>
<p>Is that forbidden by this?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --Yes, it would to the extent--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: All right.</p>
<p>Now, suppose the police department does exactly the same thing.</p>
<p>Is that forbidden by this?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --The police department would be governed by a rule of general applica--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So the police department--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --They would not be able to--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --I don't understand.</p>
<p>So is the city of Colorado.</p>
<p>They're all governed by, they can't discriminate arbitrarily.</p>
<p>My point is, suppose that the police department says exactly the same thing.</p>
<p>You say that's not forbidden.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --That's correct.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Okay.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, may I reserve the balance of my time for rebuttal?</p>
<p>Argument of Jean E. Dubofsky</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Yes.</p>
<p>Thank you, Mr. Tymkovich.</p>
<p>Ms. Dubofsky, we'll hear from you.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Mr. Chief Justice, and may it please the Court--</p>
<p>Let me begin with how Amendment 2 should be construed and then discuss how our legal theories relate to its unique combination of breadth and selectivity.</p>
<p>Amendment 2 is vertically broad in that it prohibits all levels of government in the State of Colorado from ever providing any opportunity for one to seek protection from discrimination on the basis of gay orientation.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, when you say all levels of government in Colorado, Ms. Dubofsky, you don't include the people by referendum, I take it, or the people by initiative.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: No, we do not.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: And I have one more very specific question.</p>
<p>What about the courts?</p>
<p>Can the courts interpret a statute that prohibits unreasonable denial of public accommodations to include gays by a specific judgment that--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: The--</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: --deals with the rights of gay people?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --The State has conceded that Amendment 2 is unconstitutional to the degree it would prohibit such a claim based upon Federal law since 1983.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: No, no, no, I meant State courts interpreting State public accommodation laws.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Our theory is that Amendment 2 on its face prohibits a State court from recognizing such a claim, but that particular interpretation of the amendment is not necessary for this Court to find that Amendment 2 is unconstitutional.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Thank you, and that particular interpretation has not been given by the supreme court of Colorado.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's right.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: It has not.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's right.</p>
<p>The Colorado supreme court interpreted the amendment, and it said it was doing this as a minimum, because that was all that was necessary in order to find the amendment unconstitutional.</p>
<p>It interpreted the amendment to mean that State and local governments are barred from promulgating and enforcing rules that declare discrimination against gay people by both government and private actors to be arbitrary, so that would include Justice Breyer's general policy suggestion with respect to the police department.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What do we do about, counsel for the other side said, no, it doesn't forbid the police department from having a rule saying don't discriminate against gays.</p>
<p>It doesn't forbid any of these agencies from having such a rule.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: The Colorado supreme court interpretation of this amendment is authoritative for purposes of this argument, I believe, and the Colorado supreme court--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Where does it say that in the Colorado supreme court's opinion?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --It says that on page B 3, D 24--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Of the white appendix, or the--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Yes, in the white appendix.</p>
<p>B 3, D 24, and D 25.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: --D as in does?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: D as in David, or does, yes.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: David, yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: And the way in which the Colorado supreme court says that is by giving examples of the types of provisions that would be repealed by the amendment, or precluded from enactment in the future.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: B 3?</p>
<p>What does it say on B 3 that says that?</p>
<p>Is it B--</p>
<p>--It... B 3... you said B as in--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: B as in boy.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --Boy.</p>
<p>It seems to me it says the effect, the ultimate effect is to prohibit any government entity from adopting similar or more protective statutes, regulations, or orders in the future.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes, and it refers back to the first sentence.</p>
<p>It says, the immediate objective of Amendment 2 is at a minimum to repeal existing statutes, regulations, ordinances, and policies.</p>
<p>Then on pages--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Wait, that barred discrimination based on sexual orientation.</p>
<p>I assume that that means special provisions giving special protection--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Well--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --as opposed to a general law that says you have to, not just accept homosexuals, but all citizens have to be accommodated at hotels.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --That's correct.</p>
<p>There are general laws that say--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: As opposed to a special law that says a private homeowner who wants to rent a room... you know, the mom and a family that wants to do bed and breakfast cannot discriminate in the people it accepts.</p>
<p>Although it has no obligation to take the public at large, it can decide to take only Irishmen if it wants, but it cannot discriminate on the basis of homosexuality.</p>
<p>I thought that's the kind of thought the court is referring to here.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --The Colorado supreme court is referring to?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: No, I don't think so.</p>
<p>I think it's referring to the general ordinances that were preempted by Amendment 2, and in Colorado those general ordinances either have specific exceptions for exactly the type of example you gave, or they have never been enforced to have someone in the Mrs. Murphy's boardinghouse situation required to accept someone who does--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: You mean no general laws can be applied to homosexuals now?</p>
<p>They can be bashed, they can be murdered, they... all sorts of things.</p>
<p>Is that what it means?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --We think it can mean that, but we don't think the Colorado supreme court found it necessary to go that far in its interpretation--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --and we're not arguing that it needs to be interpreted that broadly in order to find Amendment 2 unconstitutional.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --I don't think the Colorado supreme court did interpret it that broadly.</p>
<p>I think they interpreted it to refer to special protections accorded to homosexuals and not to the public at large.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: I think we're having trouble a little bit with semantics.</p>
<p>One of the difficulties is the use of the words special protection in this case.</p>
<p>I don't think there is such a thing as special rights or special protections.</p>
<p>I think there's a right which everyone has to be free from arbitrary discrimination.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: No, but if I go and ask a homeowner to take me in on bed and breakfast and the homeowner says, I don't like Italians, that's my tough luck, unless there's a law against it.</p>
<p>It's that person's house, and that person is entitled not to like Italians and not to rent rooms to Italians.</p>
<p>That's fine, unless there's a law against it, and you can have such a law prohibiting the rental of rooms, or refusal to rental on the basis of racial discrimination or on the basis of homosexuality, if you want to make that a category, and I think that this law says, no special protection on that basis.</p>
<p>Why isn't that a special protection, one that is not given to everyone?</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: At D 24 and D 25 there's some particular examples.</p>
<p>Wasn't that--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's right, D 24--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: --Colleges, State colleges, the insurance example.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --That's right.</p>
<p>That's right, and all of those particular laws say that there shall be no discrimination on the basis of sexual orientation.</p>
<p>They apply to everyone.</p>
<p>They're laws of general applicability.</p>
<p>Amendment 2 preempts those laws, or precludes or bars those laws only on the basis that they provide protection for people on the basis of gay sexual orientation.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yes, but you... but they are laws that provide special protection for that particular category of person, which they don't provide to people at large.</p>
<p>You can refuse to hire someone because you don't like the way he combs his hair.</p>
<p>There's no law that says combing of hair is not a proper basis of discrimination.</p>
<p>If you don't like that, you can refuse to hire him.</p>
<p>Special protection is given by this law which they cite by reason of homosexual orientation or conduct.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Well, in Colorado--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Is that not special?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --In Colorado, there is a law which says one cannot be terminated from employment for any legal off duty conduct, and gives one the basis for a claim.</p>
<p>If your employer doesn't like the way you comb your hair, that was an improper reason for terminating your employment.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Does a State college... can a State university decide not to admit a student under generally applicable law because it doesn't like the way he combs his hair?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's a question I'm not sure I know the answer to, but I think--</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I mean, can State universities discriminate arbitrarily?</p>
<p>Can State insurance commissioners discriminate arbitrarily?</p>
<p>I would assume not.</p>
<p>I mean--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --I don't think they can discriminate arbitrarily, no.</p>
<p>They shouldn't be able to.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: --Let me put it to you this way.</p>
<p>Suppose there's a Colorado ordinance, or city ordinance which said you cannot bar people from public accommodations for any arbitrary or unreasonable reason.</p>
<p>Could a court in Colorado find that barring... after this amendment, could a court in Colorado find that it was unreasonable or arbitrary to bar a person from public accommodations by reason of sexual orientation?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: I think a court could find that, yes.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Despite the provision under the Constitution that says no preferences should be given?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Well, it depends upon whether the court is referring to more general equal protection law on a Federal level.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: No, no.</p>
<p>It's talking about interpreting a statute that says you cannot deny for an arbitrary or unreasonable... on the basis of an arbitrary unreasonable criterion.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: If that criteria in the particular case is because the person who was denied that benefit is a gay person, then I think under Amendment 2 the court would not be able to provide relief.</p>
<p>Now, we don't think that this Court needs to resolve that type of a specific issue, the application of Amendment 2, in order to find Amendment 2 unconstitutional.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But isn't the very purpose of this ordinance to say, it's not arbitrary to leave out of a catalog of protection against discrimination, it's not arbitrary to leave out homosexual, lesbian... persons of homosexual, lesbian, or bisexual orientation?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Amendment 2 if interpreted at its broadest would authorize that type of discrimination.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But even on a narrower interpretation, even for example if Amendment 2 didn't touch courts, wouldn't it be very difficult for the courts of Colorado to say that that was an irrational or an arbitrary basis for discrimination with Amendment 2 on the books, even if Amendment 2 was narrowly construed?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes, it would be, I believe--</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --and we argue in our brief that Amendment 2 would prevent a court from providing a remedy in these circumstances.</p>
<p>We think it does on its face.</p>
<p>However, the Colorado supreme court--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Because it refers to departments of the government.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Absolutely.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: But the Colorado supreme court didn't think it was necessary to go that far in order to find the amendment unconstitutional.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Well, we really don't have a definitive interpretation, I guess, of how far this amendment would go.</p>
<p>I think the arguments and responses this morning are illustrative of the fact that we're not sure.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: I think we do have a definitive interpretation from the Colorado supreme court.</p>
<p>It's at pages D 25 and D 24, actually--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --and that's where the Court--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: I looked at that, and I just thought that that wasn't definitive.</p>
<p>There are still questions about how far it would go and the extent to which it reaches courts, and so forth and so on.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --One of the difficulties with this amendment is that you have no idea what type of general rule might be necessary in the future to prevent arbitrary discrimination against gay people.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, isn't it your position, Ms. Dubofsky, that you can sustain the Colorado supreme court's decision overthrowing the statute by taking just what the Colorado supreme court said was the minimum meaning?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes, that's correct.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And so you don't have to get beyond that, in your view, in order to uphold your position.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And this is a facial challenge.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: And this is a facial challenge, that's right.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Which means that you take the position that there are no applications in which the statute can be constitutional.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Well, we would here because we think the minimal interpretation here is sufficient to find the amendment unconstitutional.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Which means there are no applications that would be constitutional.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: It doesn't necessarily mean that there are no applications that would be constitutional.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I think it does if it--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: It just means that those are irrelevant.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --Well, that's not what our case law involving facial challenges says.</p>
<p>If you wanted to wait for an as applied challenge, you might pick an unconstitutional situation and litigate that, but when you challenge it on your... on its face, you are saying that in all of its applications it is invalid.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: We're saying that the minimal interpretation that the Colorado supreme court gave to this in all of its applications is invalid.</p>
<p>Because there may be other types of applications of this amendment, we don't have to deal with those in this particular facial challenge because they're basically irrelevant.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Ms. Dubofsky, do I understand correctly that what you're saying about what the Colorado supreme court said, at a minimum this amendment immediately repeals all of the laws that are listed, and this group of people cannot be reinstated into this group of laws without a constitutional amendment, and that is what you say is unconstitutional--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Or--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: --under Federal equal protection?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Or any other laws of general prophylactic rules.</p>
<p>There's a difference between general prophylactic rules that prevent arbitrary discrimination such as the rules or statutes that are listed there, but that's not an exhaustive list, and the application or, you know, case by case determination of whether a particular denial of admission to a hotel, let's say, is covered by Amendment 2.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But these rules on 24 and 25 don't, as I understand them, prohibit arbitrary discrimination.</p>
<p>They prohibit discrimination just on particular grounds... race, sex, homosexual orientation, not how you comb your hair.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: No, they... it's not homosexual orientation, it's sexual orientation in general.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Ah.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: The laws that Amendment 2 deals with, all are laws that apply to everyone.</p>
<p>Amendment 2 only--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: They do apply to everyone, but they only apply for certain reasons.</p>
<p>They are not laws that say, no arbitrary discrimination.</p>
<p>You can discriminate on very arbitrary bases, just not those particular bases listed.</p>
<p>Isn't that right?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --That could be right.</p>
<p>It depends upon the circumstance.</p>
<p>But what I'm really trying to point out is that rules such as general... the Boulder ordinance, let's say, or the State insurance statute, presume that certain types of discrimination can be arbitrary.</p>
<p>They're general prophylactic rules.</p>
<p>Most of our civil rights laws in this country are effectively enforced by general prophylactic rules.</p>
<p>If we had to rely on an individual case by case enforcement, I don't think we'd have very much civil rights law enforcement.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Is there a principle in Colorado law, as in many laws... let me explain what I'm thinking... simply that if a private person can often act arbitrarily, often, and you tell that person that they can't discriminate against gays, you've given gays a special protection, all right, but governments by and large cannot act arbitrarily anyway.</p>
<p>Is there such a principle in Colorado law?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes, there is.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Is there an administrative procedures act, for example, in Colorado?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes.</p>
<p>There's generally a principle that government cannot act in an arbitrary fashion, that governmental services are available to everyone.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: So that's why you say, or you think the Colorado supreme court is saying that this law or policy, if it means anything, means that Colorado cannot enforce that nonarbitrary principle anyway through rules and regulations.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Let me ask you, counsel, getting away from the wording in the provisions of this amendment, suppose that Colorado is concerned that one city has passed an ordinance giving preference to gays in employment hiring, and for any number of reasons the citizens of Colorado do not want that.</p>
<p>Some people say they want uniform laws because it's easier on employers.</p>
<p>Could the citizens of Colorado by referendum repeal that ordinance?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes, they could repeal that ordinance.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Without any constitutional objection?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: I think that's correct.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Could they also provide that no such ordinance shall be adopted in the future?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's where it gets more difficult.</p>
<p>That's where our political participation argument comes to play, that by disabling a government from responding to a need for a particular benefit, the type of protection that... it depends upon the circumstances.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, it would seem a little odd that there could be an ordinance enacted, then repealed by the referendum, then the ordinance is enacted again, then repealed... it just goes back and forth.</p>
<p>That seems a little odd.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Ms. Dubofsky, could Colorado adopt a law that says any law in our State dealing with discrimination on any ground has to be passed at the State level?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: It could.</p>
<p>The problem--</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: That would be valid.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Well, it may be.</p>
<p>There are other problems with dealing with civil rights protections and generally, but let's say they passed Amendment 2 but it didn't target gay people.</p>
<p>It simply said that no one can obtain any protection from discrimination, arbitrary discrimination for any reason.</p>
<p>That would not present the problem that Amendment 2 presents.</p>
<p>Amendment 2 is very selective.</p>
<p>It targets only one group of people, and that's where it encounters equal protection difficulties.</p>
<p>The State may be able to rearrange its process in any number of ways.</p>
<p>It just can't do it in a way that prevents one particular group.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: Ms.--</p>
<p>--But the... I'm sorry.</p>
<p>Go on.</p>
<p>No.</p>
<p>That's all right.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: What group does it target?</p>
<p>I'm asking you the same question I asked the Attorney General.</p>
<p>How do you read the statute when it refers to sexual orientation, homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships?</p>
<p>Suppose a person who, let's say, has a tendency to homosexual conduct, but has never engaged in homosexual conduct, is that person... would an ordinance that relates to that person be covered by this?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes.</p>
<p>The Colorado supreme court did interpret this initiative in this regard.</p>
<p>It said that homosexual conduct was subsumed within homosexual orientation, and--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, I'm sure it is, but what else?</p>
<p>I mean, that's the problem.</p>
<p>What else?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --I don't understand what you mean by what else.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Beyond homosexual conduct.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Well, heterosexual people are not identified exclusively by heterosexual conduct.</p>
<p>In the same fashion, homosexual people are not defined exclusively by homosexual conduct.</p>
<p>It doesn't mean that heterosexual people don't have a heterosexual orientation.</p>
<p>Homosexual people have a homosexual orientation.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, are you saying, then, that orientation identifies a group beyond the identification of... by reference to specific homosexual conduct?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes, it does.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<p>So it's a broader category.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: And that's what the Colorado supreme court--</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Both words are used... both words are used in the amendment.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Both words are used in the amendment, but the Colorado supreme court said that homosexual orientation is broader than homosexual conduct and that... the State had been arguing that, well, we'll just sever out the language, homosexual orientation, from Amendment 2.</p>
<p>The Colorado supreme court said no, you can't sever this amendment--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, what if I thought that there's a problem with orientation but not a problem with the others, do you win or lose on this facial challenge?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --If you thought there was a problem with targeting people based on their homosexual--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --orientation, people who do not engage in conduct of the sort, but have a tendency in that direction.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Well, I'm not quite sure what you mean by problem.</p>
<p>Do you mean--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Suppose I find that it would be valid to have such a law directed at conduct--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: --but not at... directed at something other than conduct.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: No, we don't lose, because this law's--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why don't you lose?</p>
<p>This is a facial challenge.</p>
<p>You say it has no valid applications.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --This law is much broader than that, and the minimal interpretation given by the Colorado supreme court is that the law covers homosexual orientation as well as conduct, and that they are not severable.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well--</p>
<p>--But isn't the breadth that you would rely on not that it covers orientation rather than just conduct, but that it in effect fences people out of a political process?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct.</p>
<!-- unknown--><p><b>Unknown Speaker</b>: And I guess that takes me back to your answer to, I guess it was Justice O'Connor, in which you said the constitutional defect was the manner in which, or a general constitutional defect would be targeting homosexuals.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That's not really your position, is it, because if there were an ordinance... let's say there were an ordinance in a given city saying there will be no discrimination based on age, handicap, or sexual orientation, and there were a political move in that city to repeal the reference to sexual orientation, that would be targeted at homosexuals, but it would not run afoul of what I understand your position to be here, is that correct?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: I'm not certain I understand what you're driving at.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Look, if... you've got an ordinance in a city that says no discrimination based on age, handicap, or sexual orientation.</p>
<p>There's a political move in the city to repeal the reference to sexual orientation.</p>
<p>It succeeds.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Is that a violation of equal protection?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: No.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Ms. Dubofsky, supposing that in Colorado, shortly before the enactment of this ordinance, there had been agitation, say, by dissident Mormon sects to repeal the prohibition against polygamy that I assume Colorado has, and so there's a referendum that says... the Colorado constitution says polygamy will always be a felony in the State of Colorado, now, does that fence out these people who would like to see polygamy allowed?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Not necessarily, because that's really dealing with much more of a discrete issue.</p>
<p>It's not a restructuring of the political process.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But there... well, there... it's certainly restructured, if they were agitating before the legislature to try to get a prohibition against polygamy repealed.</p>
<p>It certainly fences them out there.</p>
<p>They now have to go to a referendum just like your clients do.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct, but the particular issue involved is having to do with the identity of the group of people who are engaging in polygamy, and it's prohibiting polygamy.</p>
<p>The best way I can answer that question is to say, if you substituted bigamists or polygamists into the language of Amendment 2, then you would have a problem, as we point out, but here--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: What sort of a problem would you have?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --You would have a problem of denying people the fundamental right to participate in the political process.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, so then you say that Colorado cannot say in its constitution either polygamy or bigamy will always be a felony.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: They could say that in their constitution, yes.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, would it be valid, under your theory of the Federal Constitution?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: To have that in the--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Colorado constitution?</p>
<p>Yes, it would.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well then, why is that different from this case?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That is different from this case because this case is targeting a particular group of people on a personal characteristic, and--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but surely the dissident sects that want to practice polygamy are a particular group of people, too.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --That's correct.</p>
<p>What they're not being deprived of is a whole category of laws that provide them a benefit, the opportunity to seek protection from discrimination or a similar--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, but maybe this is essential to their religion.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Well, then it would come under a whole different way of analyzing the issue, and that would be whether it deprived them of a First Amendment--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Ms. Dubofsky, do you contend that... are you asking us to overrule Bowers v. Hardwick?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --No, I am not.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, there we said that you could make homosexual conduct criminal.</p>
<p>Why can a State not take a step short of that and say, we're not going to make it criminal, but on the other hand, we certainly don't want to encourage it, and therefore we will neither have a State law giving it special protection, nor will we allow any municipalities to give it special protection.</p>
<p>It seems to me the legitimacy of the one follows from the legitimacy of the other.</p>
<p>If you can criminalize it, surely you can take that latter step, can't you?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: What you've done is deprived people, based on their homosexual orientation, of a whole opportunity to seek protection from discrimination, which is a very different thing.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: So do you do it when you throw them in jail for a felony?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: No--</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I'm not talking about orientation, now.</p>
<p>I'm talking about conduct.</p>
<p>If we have held it constitutional to make the conduct criminal, how could it be unconstitutional to go so much short of that?</p>
<p>We don't want to get into the hassle of intrusion into private life, and all of that, that that requires.</p>
<p>We're not going to criminalize it.</p>
<p>On the other hand, we do not think it is conduct that ought to be encouraged, and therefore we will not allow any special protections for it, neither at the State level, nor locally.</p>
<p>Doesn't... if the one is constitutional, must not the other one be?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --If homosexuals were put into the language of Amendment 2 only in terms of, those people who engage in homosexual conduct shall not be entitled to ever seek protection under the civil rights laws, we would say that is unconstitutional.</p>
<p>That's a very different thing from saying that you can criminalize homosexual sodomy.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But isn't it also true that this law applies to this class of people even if they abstain from the prohibited conduct?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct, and it also could apply to people who aren't gay, but who may be perceived to be gay and are discriminated against on that basis.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Ms. Dubofsky, if we could go back to the question Justice Kennedy was asking, I take it your answer to him was, your objection is to the permanency, the bar to access to the political process to get something changed.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But you're not objecting to the State saying, we repeal all existing ordinances.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct, and that's because the case law and the fundamental right to political participation says a simple repealer is all right.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Then how do you answer Justice Kennedy's further question, well, isn't the State entitled to end a ping pong game?</p>
<p>The locality passes it, the State repeals it.</p>
<p>The locality passes it again, the State repeals it again.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: The constitutional bar, in effect, to ever adopting a protection of any sort, or an opportunity to seek protection from discrimination, is a very different type of barrier than a simple repealer and reenactment, because it means that if the group is going to ever obtain any protection, it has to amend the State constitution first.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yes, but wouldn't you say that it could end the ping pong ball that way if it ends it with respect to all protection against private discrimination?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct, it could.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: That would not be an equal protection problem.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's right.</p>
<p>That's right.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So you're saying, if I understand you, you just can't end the ping pong ball for this particular group.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct, or any particular group.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Right.</p>
<p>Right.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: It doesn't matter who the group is--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Yes.</p>
<p>Yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --you just can't do it this way.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: But you can end the game.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: That's correct, you can end the game.</p>
<p>If the State wants to repeal and prohibit any civil rights protections for anybody at any level of the government in the future, and do it for everyone--</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I ask you a rather elementary question I should know?</p>
<p>Did the State file an answer in this case?</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: --Did the State file an answer in this case?</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: They did file an answer.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I couldn't find it--</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: And we tried the case.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: --Thank you, Ms. Dubofsky.</p>
<!-- jean_e_dubofsky--><p><b>Mr. Dubofsky</b>: Thank you.</p>
<p>Rebuttal of Timothy M. Tymkovich</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Mr. Tymkovich, you have 1 minute remaining.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Your Honor, the Colorado supreme court rule basically holds that preemption is unconstitutional.</p>
<p>It says that with respect to this issue... this issue, not the people.</p>
<p>This issue... it must be resolved at the local level, and that people who oppose the substantive policy--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, excuse me, I don't see where it said preemption was unconstitutional, as distinct from saying, preemption for one identifiable group was unconstitutional.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --It's preemption of this issue that affects a group, and in James the Court told us it's permissible--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, it doesn't... it doesn't... the ordinance speaks both in terms of issue, i.e., basis for claim, and group.</p>
<p>I mean, it refers to both, doesn't it?</p>
<p>You can't have one without the other, the way the ordinance is--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --It's an issue that affects a group, like in James, and like in Gregory v. Ashcroft, where we had an age restriction in the State.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: --Well, isn't in effect defined in terms of the group under traditional equal protection analysis, which looks to the intent of the enacting body?</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: Right, and then there would be the question--</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay.</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: --of whether a rational basis supports that.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr.--</p>
<!-- timothy_m_tymkovich--><p><b>Mr. Tymkovich</b>: In this case--</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: --Thank you, Mr. Tymkovich.</p>
<p>The case is submitted.</p>
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The OYEZ Project </div>
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Fri, 09 Jan 2009 14:49:48 +000057942 at http://www.oyez.orgJones v. Helms - Oral Argumenthttp://www.oyez.org/cases/1980-1989/1980/1980_80_850/argument
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Case:&nbsp;</div>
<a href="/cases/1980-1989/1980/1980_80_850">Jones v. Helms</a> </div>
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Transcript:&nbsp;</div>
<p>ORAL ARGUMENT OF MS. CAROL ATHA COSGROVE, ESQ., ON BEHALF OF THE APPELLANT</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: We'll hear arguments next Jones v. Helms.</p>
<p>Ms. Cosgrove, you may proceed whenever you are ready.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>This case comes to the Court today on appeal from the United States Court of Appeals for the 5th Circuit.</p>
<p>The question presented is whether, under the Equal Protection Clause of the United States Constitution, a state in furtherance of its interests in protecting its children and enforcing its criminal law may enact a statute which provides that a person who commits the crime of child abandonment and leaves the state is guilty of a felony, whereas a person who commits the crime of child abandonment without leaving the state is guilty of a misdemeanor.</p>
<p>Appellee's challenge--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Does it make any difference under this statute whether the particular person left the state three hours after the commission of the act or three years?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --No, sir, there is no time element specified on the face of the statute.</p>
<p>Appellee's challenge and the court of appeals decision is predicated on the ground that the statute distinguishes between two classes of abandoning parents, based upon the exercise of their constitutional right to travel, and that therefore the statute is void under the Equal Protection Clause.</p>
<p>Appellee is a father who was ordered by a Georgia court to make child support payments but who never did, who simply went to Alabama.</p>
<p>He testified that he did not go to Alabama for the purpose of avoiding his child support obligations but rather to attend school.</p>
<p>When he returned to Georgia to visit his child he was arrested on the warrant for the felony of abandoning his child and leaving the state, and received a three year sentence suspended on condition that he make child support payments, which he never did.</p>
<p>Instead he just left the state again.</p>
<p>He eventually became a resident of Florida.</p>
<p>Upon his wife's death he regained custody of his child, but he had some problems with the Florida authorities and moved back to Augusta, Georgia, where the child had to be placed in the Department of Family and Children Services custody, basically a welfare agency.</p>
<p>And thereafter, the appellee was arrested on an outstanding bench warrant and sentenced to serve three years.</p>
<p>After having exhausted his state remedies, the appellee filed a petition for habeas corpus in the United States District Court for the Middle District of Georgia alleging that the statute violated his constitutional right to travel and was void under both the Equal Protection and the Privileges and Immunities Clause of the Constitution.</p>
<p>The district court ruled against the appellee but upon appeal to the 5th Circuit the district court's order was reversed and judgment entered for appellee.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Ms. Cosgrove, I have some difficulty interpreting the 5th Circuit's opinion, perhaps because of its shortness.</p>
<p>It seems to rely at some length on the Morissette case from this Court, which was simply as I had understood it a handbook of how this Court would interpret federal statutes with respect to intent and was not a constitutional doctrine at all.</p>
<p>What would you say was the rationale of the 5th Circuit, if there is one?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Your Honor, I believe the 5th Circuit saw our statute as not having the requisite specific intent which would make it pass muster.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But why would it have to have requisite... why does it have to have any specific intent?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: It was the 5th Circuit's opinion that without the specific intent the statute would be overly broad.</p>
<p>It's our contention, of course, that it is not necessary to have a specific intent for that element of the crime.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, unless you're talking about free speech you don't have an overbreadth challenge here, do you?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: That's correct.</p>
<p>I believe only in the First Amendment area has there been a chilling and an overbreadth problem addressed by this Court.</p>
<p>The court of appeals reasoned that inasmuch as the appellee did have a fundamental right to travel, that the statute was the subject of strict scrutiny; and secondly, since Georgia has no compelling state interest involved, that the statute would be violative of equal protection.</p>
<p>The court of appeals also reasoned that the statute was overly broad in that we had the Uniform Reciprocal Enforcement of Support Act, URESA, which was available to vindicate any of Georgia's interests.</p>
<p>Appellant appealed that decision on September 19, 1980, and this Court noted probable jurisdiction on January 26, 1981.</p>
<p>There are two issues before the Court today.</p>
<p>First, whether parents who commit the crime of child abandonment do have a fundamental right to travel in this instance.</p>
<p>And secondly, if such a right does exist, whether Georgia's child abandonment statute impermissibly penalizes that right without being justified by compelling state interest.</p>
<p>Now, turning to the first issue, it is Georgia's position that the fundamental right to travel, to migrate, to settle in other states, was never intended to encompass and protect the criminal's right to avoid the consequences of his own misdeeds.</p>
<p>Whatever the constitutional rights of criminals in other contexts may be, their rights to full and free travel are attenuated.</p>
<p>For example, if a person commits a crime, just leaves the jurisdiction, even without intent to avoid prosecution, he is nevertheless subject to mandatory extradition proceedings.</p>
<p>And in addition, many states including Georgia have statutes of limitations which are tolled the instant a person leaves the state, thus dramatically increasing the time period during which a person may be punished for a crime.</p>
<p>So, since we do not believe that there are any fundamental rights involved in this case, we submit that it is the rational basis test that should be applied to this statute and that the statute easily passes that test.</p>
<p>As this Court has noted, it is the state legislature which is preeminently responsible for defining, and punishing crimes.</p>
<p>And we submit that the state legislature could rationally have decided that a person who commits a crime, in this instance the crime of child abandonment and leaves the state makes it much more difficult for the state to bring him to justice, that that person deserves a more stringent punishment.</p>
<p>However, even if strict scrutiny test were to be applied, as appellee urges, we submit that the statute would also pass muster under this more exacting standard, for it is not every constitutional infringement, of course, that is barred, it's only those which rise to the level of penalty.</p>
<p>It's our position, of course, that this statute in no way penalizes the right to migrate.</p>
<p>Indeed, if it has any effect at all upon the right to migrate and settle in other states, that effect is purely incidental and remote.</p>
<p>For under the statute a parent is free to move to any state he wishes, stay as long as he wishes, and the statute has absolutely no impact upon him at all unless he has committed the crime of child abandonment.</p>
<p>So this statute is unlike provisions which this Court has struck down in, for example, Crandall v. Nevada, a taxing provision that reached everyone who left the state.</p>
<p>This statute is narrowly tailored to reach only those persons who have committed a crime.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Or intend to in the course of leaving the state, or intend to abandon the child later?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: There is--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: This applies whether you abandon after you've left the state or before?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --On the face of the statute it does, Your Honor.</p>
<p>However, it's our position that the appellee really would have no standing to raise that second prong--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: I understand.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --of the statute since in the facts in this case, he pled guilty.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: I understand.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Secondly, I might mention that, unlike some of the cases, for example Maricopa County and Shapiro, where this Court was concerned with provisions which addressed themselves primarily to indigents, that this statute does not impact on those persons who are in the blameless but unfortunate situation of poverty.</p>
<p>Rather, this statute impacts on the most blameworthy persons, those parents who abandon their helpless children.</p>
<p>So we feel that this statute no more penalizes parents who simply wish to go to another state than does the existence of an extradition law or an indefinite statute of limitations.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Of course, this whole problem could be solved, I suppose, if the Georgia Legislature simply made child abandonment a felony.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Well, Your Honor, of course the Georgia Legislature certainly could have done that and many states have, but I think that in not doing so they have recognized the difference in the type of crime, in that the impact upon the child is greater because the likelihood of ever recovering any support is much less when the parent--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: This is not a support statute; this is a criminal statute.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --Well, sir, there are two elements in child abandonment.</p>
<p>First, one has to desert the child.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Yes, but this is a criminal statute.</p>
<p>There is nothing in this statute that requires the parent to support.</p>
<p>It only punishes the parent for not supporting.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: For not supporting.</p>
<p>That's correct, Your Honor.</p>
<p>Of course, even if the Court were to see this as somewhat of a penalty upon the constitutional right to travel, it's Georgia's position that the statute is more than justified by our compelling interest in protecting our children and enforcing our criminal laws.</p>
<p>And this interest in protecting our children appellee does not even dispute, and it is manifested in at least two other statutes which make this same felony misdemeanor distinction.</p>
<p>For example, we have a statute which makes it a felony for a husband to abandon his pregnant wife and leave the state, whereas if he stays in the state, it is a misdemeanor.</p>
<p>And similarly, we have a statute which makes it a felony if one is to interfere with the custody of a child who is committed to the legal custody of another, and then to take that child out of the state.</p>
<p>And again, interference with the custody of a child within the state is only a misdemeanor.</p>
<p>So, I think the Court can see that Georgia is fairly consistent in this design to protect its children.</p>
<p>Turning to the interest in protecting our criminal laws, practically speaking, when a criminal leaves the jurisdiction, Georgia, just like every other state, is dependent upon extradition to get that person back to face trial or to serve his punishment.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Do you have a general statute that makes it a crime to flee from justice, or to abscond, or to leave the state?</p>
<p>What if you're under indictment and you leave the state?</p>
<p>Is that a separate crime?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Not to my understanding, Your Honor.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But isn't that... that's not unheard of, though, around the country, is it?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: There are many statutes, including federal statutes that--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: It could be a breach of a bail condition, I suppose.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --Yes, sir, I think it could be.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: How about... is that a crime in your state, to violate your bail?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: I'm not at all sure, Your Honor.</p>
<p>The felony provision of Georgia's child abandonment statute greatly enhances extradition for... although I'm sure this Court is aware that, technically speaking, it is possible to extradite for misdemeanors under both state and federal law, as a practical matter, the discretion to refuse to extradite for misdemeanors is totally within the governor of the responding state.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Of course, if Georgia made this a felony across the board, all these problems would disappear, wouldn't they?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Perhaps our problems with extradition would disappear, Your Honor.</p>
<p>But again, I would say that the Georgia--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: As would this case disappear.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --Yes, sir.</p>
<p>The appellee would not contend that there was anything wrong with a felony across the board.</p>
<p>It's simply our position that the Georgia Legislature need not make that across the board distinction.</p>
<p>As I was saying, the discretion to refuse to extradite for misdemeanors is totally within the purview of the governor of the responding state.</p>
<p>But the court of appeals has said that Georgia really does not even need to use extradition to satisfy our interest in this case, that we have the provision of URESA, the Uniform Reciprocal Enforcement of Support Act, which can vindicate any of our interests, mainly that we can obtain support for the child, or return the parent to the state.</p>
<p>We submit that the court of appeals was in error in this regard for several reasons.</p>
<p>I need to explain that all 50 states have in fact adopted some sort of reciprocal enforcement act.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: May I ask, Ms. Cosgrove, if we agree with the argument to this point with you, we don't have to reach this question, do we?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: I beg your pardon, Your Honor?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: If we agree with what you have said up to date, supporting the constitutionality of the statute as not violative of the right to travel, then we don't have to reach this alternative?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: That's correct, Your Honor.</p>
<p>This is a less drastic means, argument which the court of appeals--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But you don't have to rely on it if we agree with your initial argument.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --That's correct, Your Honor.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Because then you're just... need a rational basis.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: That's correct, Your Honor.</p>
<p>But the court of appeals used as an example of the overbreadth that we did have this alternative means available to us, and I think, quite honestly, that this alternative means simply is not effective for under the version of URESA which has been adopted by approximately 10 states, there is a provision by which an absent parent can totally avoid extradition.</p>
<p>He simply submits himself to the jurisdiction of the court of the responding state and agrees to pay some child support.</p>
<p>And he never comes back to Georgia, he never sees the inside of a jail.</p>
<p>For the remaining states which do not have that automatic avoidance of extradition, many of them nevertheless have a discretionary section which says to the governor of the responding state, basically, if there has not been a URESA petition filed, you don't have to extradite this person.</p>
<p>You can require a URESA petition to be filed first.</p>
<p>And secondly, if there is an outstanding order of some type in existence and the absent parent is complying with that order, then the governor can also just refuse to extradite that person.</p>
<p>I think if we were to follow the court of appeals decision in this case, we could conceivably have a situation where a person abandons his child in Georgia, goes to another jurisdiction, and even if the custodial parent... and I might add, it is usually the custodial parent which files a URESA petition... even if that custodial parent were successful in getting that absent parent into the court of the responding state, it is more likely than not that he could totally avoid extradition by simply agreeing to pay child support.</p>
<p>And the difficulty with that... you know, one might say, well, he's paying child support, that ought to settle the problem... the difficulty is that the duty of support which URESA contemplates is not the duty of support which obtains in the demanding state, in Georgia, for example.</p>
<p>It would be the duty of support imposable under the laws where the absent parent was, and that's presumed to be the responding state.</p>
<p>So we can have a situation where the absent parent comes into court, he agrees to pay child support, he may well be a respected member of the community by now, and the court simply will not impose a large amount of support on that absent parent, and thus really defeating the order of the Georgia court, and also not meeting the needs of the child.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, again, this is a criminal statute we're dealing with here.</p>
<p>And the law that you're discussing and that was discussed by the court of appeals is not a criminal statute, is it?</p>
<p>It's a statute to enforce the duty of support by making the parents supporters of the child?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Yes, Your Honor, and it was the court of appeals opinion that we could simply use this civil statute as a substitute for our criminal statute.</p>
<p>It is our position, of course, that the state has a right to define and punish anti social conduct such as child abandonment and that we have a right, if the need be, to put this person in jail or at least to make him think that he is going to.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Are you interested in support for the child or putting him in jail?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Well, sir, they're dual interests.</p>
<p>Of course we want support for the child.</p>
<p>I think the problem with the URESA petition is--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: I thought that was the whole purpose.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --Well, it's the whole purpose if the person complies with court orders.</p>
<p>But as Your Honor is probably aware, a person can say, of course I'm going to comply.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, I understand you that if somebody goes to another state and sends the money back, would you still bring him back?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: I beg your pardon?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: If a man is giving $25 a month support and he goes to Alabama and he sends back $25 a month, you still would make him come back and go to jail?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Not in that particular instance.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: That's right.</p>
<p>He's not guilty of this offense.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: No, he would not be guilty of child abandonment because he--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: No, I'm telling you, he says he has abandoned the child.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --Well, there are two prongs, Your Honor.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Yes, that's what I thought.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: You have to abandon your child, desert your parental duties, and then leave the child in a dependent condition.</p>
<p>So if he were complying with a court order regardless of how--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: He violated a support order and he went away and he changed his mind and sent the money back but he didn't come back.</p>
<p>Would you still want him?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --I think he would still be susceptible to this charge, Your Honor, because he needs to follow--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: He needs to be taught a lesson?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --Well, sometimes, Your Honor.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: It's sometimes called a pound of flesh.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Well, Your Honor, sometimes it's called a typical drifting absentee father who comes into one court and says, of course, I'll pay, and he pays for a few months and then goes on.</p>
<p>And I think--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: You don't ever catch them.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: --It's very difficult, Your Honor, it really is, and I think that is one of the crucial reasons that Georgia needs this felony provision of the child abandonment statute, simply in order to be able to get this type of person back if need be.</p>
<p>I think if we were to follow the court of appeals decision in this regard, our right to define and punish antisocial conduct such as child abandonment would be defeated because our right to enforce our laws is simply meaningless without an effective method of bringing the criminal back to trial.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Now, Ms. Cosgrove, this statute says that the felony shall be reducible to a misdemeanor.</p>
<p>How, under Georgia practice, is it reduced?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Your Honor, this can either be by the recommendation of the jury and then has to be approved by the judge, or the judge on his own motion can reduce the felony.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: The prosecutor can't do it?</p>
<p>Prosecutor can't do it?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Not to my understanding.</p>
<p>And that provision, I might note, is not unique just to child abandonment, it applies to everything but capital felonies.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Shall be reducible to a misdemeanor.</p>
<p>And that's in the discretion of the jury or the judge?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: Basically, in the discretion of the judge, Your Honor, because the jury can recommend it but the judge has to approve.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Has to do it.</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: That's correct.</p>
<p>In sum, Your Honor, we think that the Georgia child abandonment statute, particularly the felony division, is absolutely crucial to the enforcement of Georgia's interests in protecting her children and in enforcing her criminal laws.</p>
<p>We submit that the court of appeals decision in this case was clearly erroneous and should be reversed.</p>
<p>Thank you.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Mr. Bonner.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir.</p>
<p>Thank you, Mr. Chief Justice and may it please the Court:</p>
<p>I want to get one thing straight, I guess, at the outset, and that is that we don't necessarily contest the opening principle, I think, that the state started its argument with, that is that there is nothing in the right to travel which protects a parent or an accused from the consequences of his misdeeds.</p>
<p>That's not our argument at all, and that's a mischaracterization of it.</p>
<p>I will concede at the outset that there is probably, in fact there is certainly a valid area here, a general area here of application of the state's police power.</p>
<p>The state can reach fugitive parents, it can proscribe that conduct, it can reach parents who use their right to travel across a state line to frustrate the state's interest, to compound an offense.</p>
<p>But this isn't that kind of statute, and the existence of a valid area for operation of that kind of statute don't save this one.</p>
<p>We need to look at the... if this were that kind of statute, then what she said about there being a reasonable connection and this being subject to the rational connection test would probably be valid.</p>
<p>But this is not such a statute.</p>
<p>The question before this Court as a preliminary matter is how this statute by its terms, on its face, affects travel.</p>
<p>ORAL ARGUMENT OF JAMES C. BONNER, JR., ESQ., ON BEHALF OF THE APPELLEE</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: I think the question before the Court, before you get to that, is, what does the 5th Circuit's opinion mean?</p>
<p>Do you understand why they cited Morissette?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Not completely, Your Honor.</p>
<p>I don't think, I don't think Morissette necessarily has any basis here, but I think I can answer your question if you can let me get my next thought out.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: By all means.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Revive it.</p>
<p>As I say, our question here is how this statute affects the right of travel.</p>
<p>And if you look at it, any travel triggers the statute.</p>
<p>The reason... as the state has conceded, the reason for the travel is totally insignificant.</p>
<p>The time of the travel is totally insignificant.</p>
<p>It doesn't make any difference whether the man is accused before he crosses the state lines or whether he becomes accused subsequently, although for that subsequent class, obviously, you have that privileges and immunities problem, which we don't have any standing to raise.</p>
<p>But it's important to look at that aspect of the statute because it shows what the statute does.</p>
<p>This isn't a fugitive statute.</p>
<p>Bobby Helms could have crossed the state line to visit his sick mother in Alabama and as long as he was subject to being charged before or after with child abandonment, he would fall under this special felony jeopardy.</p>
<p>There is not even any requirement in this--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: What's the matter with that?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Well, quite a bit is the matter with that, Your Honor, because the right to travel is a constitutionally secured right.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, but certainly someone who is subject to not leaving the state under conditions of bail can't exercise his right to travel to visit his sick mother in Alabama.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir, that's correct, but that person is accused, the restriction on his right to travel, for example, could be relieved by a court, it could be relieved... there are adjustments.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: There are all sorts of restrictions on right to travel.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir.</p>
<p>But this, again, is not a statute which applies to someone who stands accused.</p>
<p>Bobby Helms when he left the state was not accused.</p>
<p>At least... the record is not clear on that, but he certainly wasn't arrested and he certainly didn't know he was accused until he came back and was arrested.</p>
<p>Yes, but the crime isn't committed unless he's already abandoned the child.</p>
<p>Well, no, sir, it can be committed subsequently.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: He could migrate.</p>
<p>Well, I know, I know, but in this case, the claim is that he abandoned the child and then left the state.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's true.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, that's what we're talking about, whether that's unconstitutional, to make the abandonment a felony if he's left the state.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: In effect, what you are doing is inferring or raising, the statute I should say is doing, is making a presumption, erecting a presumption that any parent who leaves the state for any reason without even any nexus to the offense of abandonment--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, do you think it would be... I suppose you would say it would be just as unconstitutional if they made it a misdemeanor to abandon the child and another misdemeanor to leave the state after having abandoned the child?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --No, sir, there would be no equal protection problem there.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Why?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: It would be the same difference.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: It would certainly bear on the right to travel, wouldn't it?</p>
<p>If you left the state you've committed another misdemeanor.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Oh, I see what you mean.</p>
<p>You're talking about a flight type of thing.</p>
<p>Yes, sir, that's true.</p>
<p>But obviously you couldn't have that kind of statute without some intent element, you couldn't... Georgia could not say who--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Why would you have to have an intent element?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Well, you've got to at least have some connection.</p>
<p>Intent is one way of connecting the exercise--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: The statute says, if you abandon the child, you have committed a misdemeanor.</p>
<p>Then it says, and if you leave the state after having abandoned the child, you've committed another misdemeanor.</p>
<p>Period.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Actually... Actually, Your Honor, the statute said, a misdemeanor to abandon your child, and/if the parent leaves the state it's a felony.</p>
<p>So it's not--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, I know, but you would make the same argument if there were two misdemeanors.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Well, no, I don't believe we would.</p>
<p>Obviously, if you had a separate statute dealing with flight to avoid prosecution--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Yes?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --that's an encumbrance on the right to travel, and admittedly.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But a valid one.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's a valid one.</p>
<p>And there are valid ones.</p>
<p>And there are invalid ones.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But you insist that there be an intent requirement?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: No, sir, no.</p>
<p>All I'm saying is that intent is one way to confine the intrusion on the right to travel.</p>
<p>Purpose would be another way.</p>
<p>Some sort of nexus... I believe that Arkansas statute or the Rhode Island statute that says he commits the offense by leaving the state.</p>
<p>But here what you've got is the exercise of a constitutionally secured right which for any reason, for any purpose, and, frankly, any time, triggers the special felony jeopardy.</p>
<p>It is like... I don't think you'd have any trouble with a state statute here which said, burglary is a felony carrying a ten year sentence but if the defendant doesn't confess, it carries 20 years.</p>
<p>Obviously, that's an extreme example, but what you've got here--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Let's alter that a little bit.</p>
<p>Instead of what you've suggested, that if he flees the state for the purpose of avoiding prosecution, the penalty will be doubled?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --No problem whatsoever, Your Honor.</p>
<p>None whatsoever.</p>
<p>I don't think, frankly, that there would be any problem if you had a Rhode Island-type statute where it says, commits child abandonment by leaving the state.</p>
<p>But the problem here is that you've just simply got an exercise of the right to travel which triggers it, and it's triggered even before the defendant--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: How does this affect his right to travel?</p>
<p>He could go to Russia.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Well, now, it might not--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But if he took care of those children.</p>
<p>Isn't that right?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Yes, sir.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: And he wouldn't violate any statute of Georgia?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's right.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: So how does this case involve the right to travel?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Same way Aptheker did.</p>
<p>Mr. Aptheker could have traveled anywhere too.</p>
<p>All he would have had to do is renounce his associations.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Come on.</p>
<p>There's no connection.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Well, let me back up, too, because you've got to, you've raised what is really the next issue, whose right to travel is affected here?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But it doesn't affect it.</p>
<p>As a matter of fact, this man traveled twice.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Well, Your Honor--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: So, he didn't... the first one didn't even bother him.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --You're assuming--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Didn't he travel twice?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --You're assuming a couple things.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Do I assume that he traveled twice?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Oh, he traveled abundantly.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Yes, he was a traveling man.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Even more when he was in the Army.</p>
<p>But the question is, whose right to travel is affected here?</p>
<p>Where you've got this kind of broad intrusion on a constitutionally secured right, it's everyone's right to travel, or at least every parent in this particular case.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: It doesn't involve my right to travel because I haven't abandoned any children.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: No, sir, but if you were a poor mill worker in Griffin, Georgia--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But I'm not.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --No, but I'm trying to tell you who's... I'm trying to answer the question of whose right to travel it affects.</p>
<p>Where you're living on a marginal income, you separate, there's a real question of whether or not there's adequate support being given.</p>
<p>That particular person's right to travel is chilled by this statute.</p>
<p>He's under a special jeopardy.</p>
<p>He may want to visit--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: It is because he's poor?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --That's true.</p>
<p>The poor are particularly--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Do you think a poor man would be traveling twice?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Poor and he traveled twice.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Yes, he's poor.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: This is exactly the situation--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Did he borrow the money or something?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --I'm sorry.</p>
<p>What, Your Honor?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Could he have used that money he used to travel to pay for his children?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: He didn't go far.</p>
<p>It was a Greyhound bus ticket.</p>
<p>I suppose he could have.</p>
<p>But this is comparable to the situation you had in Zablocki, with its broad intrusion upon the right to marry.</p>
<p>This Court didn't stop to look into the depth of this fellow's pocketbook or into the justifications he had.</p>
<p>Your own opinion, Justice Marshall, went ahead and talked about the people who dwelt on the margin, whose rights to travel were chilled... I mean, whose rights--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, if my opinion said what you think it says, why in the world do you think I'm asking these questions?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --I don't know.</p>
<p>I was--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Mr. Bonner, can I ask you?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Yes, sir, Justice Stevens.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: I'm not sure I understand your position on one thing.</p>
<p>Assume this statute said, if a person abandons a child, and thereafter, for the purpose of avoiding prosecution, leaves the state, it would be a felony; otherwise, a misdemeanor.</p>
<p>Would you say that was constitutional?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: I don't see any problem whatsoever with that.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: So, your whole argument turns on the absence of intent?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Not necessarily.</p>
<p>This is echoing what Justice Rehnquist asked.</p>
<p>Not necessarily on the absence of intent; on the promiscuous use this statute makes of the right to travel, the fact that it is--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, it's promiscuous in the sense that it applies when there's no intent.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --No intent, no purpose, no connection with the offense.</p>
<p>In pure happenstance.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: It would be just as though a state should make it criminal offense to travel?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: I'm sorry, Justice Stewart?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, if a state made it a criminal offense for anybody to leave Georgia, that would be an extreme example of what you find invalid about this case?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: And it would not analytically be different from this case.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: That's correct.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's it exactly.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Except that it would be after having committed an offense?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's what we've got here.</p>
<p>Of course, every parent is subject, theoretically--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But the reason this is a felony, not a misdemeanor, is because your client left the State of Georgia.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Because he exercised a right the Constitution gave him.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: That's all he did.</p>
<p>After having committed an offense.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Well, it happened.</p>
<p>But you see, they had to drag him back and establish his guilt of that offense.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: After having committed the first element of a two element offense?</p>
<p>But the reason it's a felony, not a misdemeanor, is because he left the State of Georgia.</p>
<p>Had he not left the State of Georgia, it would be a misdemeanor.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: If he had run from Phenix City down to Tybee Light and hidden out in the dunes down there, he'd be guilty of a misdemeanor.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: I thought you had previously conceded that if he'd committed any crime and then left the state to avoid prosecution, they could double the penalty?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir.</p>
<p>But that's not this kind of statute.</p>
<p>Let me... I'm sorry.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Not the precise statute, but you tell me what's the distinction?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: I'm sorry, Your Honor.</p>
<p>Maybe, if I did say that, I somewhat misunderstood the hypothetical thrown at me.</p>
<p>I think, even in that situation, you would have to have some nexus between leaving the state and intent or purpose--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: To avoid prosecution.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --No problem.</p>
<p>That's a nexus that's sufficient, there, again.</p>
<p>This isn't that kind of statute.</p>
<p>This says nothing about why he leaves the state.</p>
<p>If it did, we wouldn't be here.</p>
<p>We would not get by the rational connection test here.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: What if a statute said that it shall be a crime to escape from prison; shall be a misdemeanor, say, to escape from prison?</p>
<p>And if after escaping, if, for any reason, you leave the state, even if not for the purpose of avoiding prosecution, that shall be a felony.</p>
<p>Would that be constitutional?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's a much tougher question, Your Honor.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: How's it different?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: One thing that makes it different is... as a matter of fact, maybe that's a welcome question for me.</p>
<p>In that particular case you've got somebody whose liberty interests have been circumscribed because he's been convicted.</p>
<p>And that's the difference between Bobby Helms and your hypothetical.</p>
<p>You've got... our situation, this particular statute, has an impact upon parents who, at the very least, are presumptively innocent of abandonment, who may not even have been charged with abandonment.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Yes, but the reason they may not have been prosecuted is that they left the state and couldn't be reached.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Oh, well, Your Honor, I think later the problem of their being reached is going to dissipate.</p>
<p>That's not necessarily so.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Do you think Georgia could enact a "blue sky" law making it a criminal offense to misrepresent something in a prospectus about a security and completely omit any requirement that the misrepresentation be intentional?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir.</p>
<p>If you're asking me whether you can have strict liability offenses, you certainly can.</p>
<p>But you can't when you are triggering that offense on a constitutionally secured right.</p>
<p>I suppose here you're vaguely talking about a right to free speech or something like that, but I don't think that's really quite comparable.</p>
<p>I don't see any problem.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, there are an awful lot of crimes that have emerged in the past 50 years that don't require any intent at all.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir.</p>
<p>But I don't think, Your Honor, that you're going to have an easy time finding some which turn on constitutionally secured right without this Court primarily coming in and saying that when you've got it turning on a constitutionally secured right, you've got it... have a narrowly drawn statute that's got to be carefully tailored to address the specific governmental interest.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: You'd have no case at all, Mr. Bonner, would you, if people who abandon their children and didn't leave the state were also guilty of felonies?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: No problem at all.</p>
<p>The state can make that judgment--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: You'd have no case at all?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --No case at all.</p>
<p>We wouldn't be here.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: So your case depends upon the fact that other people are treated more leniently?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's right.</p>
<p>In effect, Georgia has made a judgment that for the same offense people who would happen to exercise their rights to travel are guilty of a greater offense, regardless of whether they in fact are, regardless of whether they are in fact trying to flee the jurisdiction and not visit their sick grandmother or to seek educational benefits in Alabama.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Do you suppose it would be constitutional for Georgia to pass a statute that said, if a parent abandons a child, that parent may not leave the state?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Let me run that by.</p>
<p>I think that would... yeah, I suppose Georgia probably could.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: What they've done here is something less extreme.</p>
<p>They've said, if you leave you get a more severe penalty.</p>
<p>Or if a parent abandons a child, he may not leave the state.</p>
<p>If he violates this restriction he shall be guilty of a felony.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Our problem here with this particular statute is its impact upon a broad group of people.</p>
<p>I think if you've got, if you had a statute that's saying one who is charged with anything may not leave the state, that would be perfectly valid, and that's sort of what I understood your question to say.</p>
<p>But here we--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: No, he's not charged.</p>
<p>One who abandons his child... and I guess there's an intent element in the abandonment offense itself... may not thereafter leave the State of Georgia.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Okay, I'll back up.</p>
<p>No, Georgia couldn't.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Georgia couldn't do that?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: No.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: That's not an equal protection problem, that's just a flat violation of the right to travel, to impose that restriction on a person who is guilty of a misdemeanor.</p>
<p>But you say he could do it if he escapes from prison.</p>
<p>You'd say, well, you'd say, he can't leave the state.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: But there you've got... one who escapes from prison knows he escaped from prison.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, by hypothesis, here, one who abandons a child knows he's abandoned the child.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Not necessarily, Your Honor.</p>
<p>There's a great difference there.</p>
<p>But the other thing is that at least you've got a--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, he's not guilty unless he willfully and voluntarily abandons the child.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --In your hypothetical, you've got a carefully circumscribed group on which the statute impacts, and we don't have that here.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Those who willfully abandon their children.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Well, here you've got--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Same group in this case.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --You've got parents.</p>
<p>Any parent who's presumptively innocent, who hasn't been convicted, is subject to jeopardy under this particular statute.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: This is true of a person under indictment who flees the state.</p>
<p>He carries the presumption of innocence right with him across the state border.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: And the restrictions on him are reasonable, but what you've got--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Why are they more reasonable or less reasonable than with the misdemeanor that Justice Stevens postulated to you?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Well, because that's a reasonable intrusion onto the right to travel, vis a vis the state's interest in having him there and prosecuting him.</p>
<p>I don't really see any analogy there.</p>
<p>But this, again, is the same situation as if Georgia had isolated, say, the right to trial by jury and made that there a special penalty of death, as in Jackson v. United States; or attaching a poll tax to voting in a federal election, as in Harman v. Forssenius.</p>
<p>This is what Georgia has done, and the reason that this case falls in the shadow of those authorities is again basically because of the wanton use Georgia makes of interstate travel as an element of this offense.</p>
<p>Wanton, because it has no nexus, has no intent, is not confined by any kind of purpose, need not have any relationship at all under that statute to the state's interest.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Do you question at all the authority state to criminalize the failure to support a child?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: No, sir, none at all.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Even though it's criminalizing not paying a debt, in a sense?</p>
<p>In order to--</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Well, I have no qualms about that.</p>
<p>I'm here because my client's been branded a felon and not a misdemeanant.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --Yes, I know, but no part of your case questions at all the authority of the state to criminalize?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: No, sir, I think there are a lot of policy reasons why not, and I think that's why you've got URESA, because of the judgments that the state made that this kind of problem is better approached civilly.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: You agree that the jury could have made it a misdemeanor?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, but that's just entirely discretionary.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Oh, I see, you agree to that?</p>
<p>They could have done that?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir, they, could have done it.</p>
<p>But it would be a judgment that would be made without any guidance, without any--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: But they could have done that in your case?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Yes, sir.</p>
<p>They certainly could.</p>
<p>Let me jump ahead to the strict scrutiny analysis which I hope we reach somewhere.</p>
<p>But if you figure that we've got a constitutionally protected right to travel here, then under the familiar formulas of this Court, it would fall strict scrutiny, and I don't mean to repeat it for your edification, but for mine, that would mean that the state would have to show that it's reasonably necessary to promote a compelling state interest.</p>
<p>The state basically, their interest here comes down to extradition.</p>
<p>When you look behind everything they can say about the welfare of the child and about the enforcement of the criminal law, on both avenues it boils down to aiding extradition.</p>
<p>But the only... the thing is that that's not necessarily compelling interest because we've got the Extradition Clause of the Constitution, we've got the Federal Extradition Act, we've got URESA, we've got uniform reciprocal... whatever it is... uniform criminal extradition act.</p>
<p>All of these serve, they completely serve that interest.</p>
<p>As a matter of fact, under the last two, Bobby Helms need not ever have even been in Georgia, much less have been a fugitive from Georgia.</p>
<p>Under all law, the caliber of the crime, the fact that it's a misdemeanor, not a felony, doesn't prevent extradition.</p>
<p>He's extraditable under all of them.</p>
<p>Elevating it to a felony doesn't apparently aid the state's interest one bit except for the argument they make that governors will treat this offense more seriously and everything if it's a felony, which is a pretty good argument if you want to make the whole crime a felony, but it's not a pretty good argument for the distinction.</p>
<p>The state fails on the necessity aspect of that strict scrutiny test.</p>
<p>Looking at it simply under URESA and everything else, it's just not necessary, and it can't promote it.</p>
<p>Even if it were a felony and the state proceeded under URESA, they would still encounter those relief provisions that the state talked about.</p>
<p>A judge in Alabama could still... or, a judge in another state, by entertaining an action brought by the father over there, could completely bar extradition under URESA, regardless of whether it's a felony or misdemeanor.</p>
<p>But in any event URESA is designed to be a supplementary kind of extradition procedure, not one that necessarily preempts.</p>
<p>I forget exactly what section of URESA it is, but the state's perfectly free to proceed under all its other extradition powers.</p>
<p>And again, under all of those extradition powers whether the thing's a felony or a misdemeanor, they still run into the governor's discretion.</p>
<p>And making it a capital felony is not necessarily going to elude that governor's discretion.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, what about the initial interest of the state in keeping the fellow within reach so that they can collect child support?</p>
<p>Why isn't that a compelling interest in itself?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Well, because in effect it attaches a special penalty to any parent's right to travel--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, the right to travel--</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --whether he's going to come back, whether he's not going to come back.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --All right, accepting for the moment the fact that it burdens the right to travel, then there must be a compelling interest to justify it, and what's wrong with keeping him around so that support may be collected?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Oh, maybe I should back up.</p>
<p>Nothing would be wrong with that.</p>
<p>That would be--</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, I know.</p>
<p>Why isn't that a compelling interest?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: --Well, that might be how the Chief Justice's question a minute ago makes sense about one under indictment can't leave the state.</p>
<p>I'm sorry.</p>
<p>I'm sure if anyone's not making sense that it comes from here, not from there.</p>
<p>No, I mean, that's how his example is explicable, because, you know, that kind of restriction would completely and carefully serve that particular interest.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Although Georgia, surely Georgia could not make it a criminal offense for any Georgia parent to leave the state?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: No, it couldn't.</p>
<p>And as a matter of fact, it couldn't... you can carry it somewhat further, and say, any parent who wants to leave the state's got to stop at the state border and post bond for the support of his children.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: On the other hand--</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: And then you'll have Alabama on the other side saying, if he brings his children in, he's got to post bond to make sure they don't become public charges.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --Are you suggesting the state couldn't adopt a felony statute that they couldn't leave the state if they left dependent minor children behind them?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: I don't think the state could.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Well, what's the statute except that?</p>
<p>That's what this statute is, isn't it?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: That's exactly why the statute is wrong.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Yes, but you say they can't--</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Is bad.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: --That's your reason for saying it's bad?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir.</p>
<p>That Georgia couldn't do that.</p>
<p>This is a different degree of intrusion, but it's exactly the same kind of pattern of intrusion.</p>
<p>Here, essentially, Georgia has taken a constitutionally secured right, the right to travel, and they've made the degree of an offense turn upon it.</p>
<p>They' made the difference between a felony and a misdemeanor turn upon it, and they've made it turn upon it.</p>
<p>Bobby Helms couldn't come into court and say my sick grandmother was over there and I had to visit her.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Mr. Bonner, do I understand your argument really doesn't rest on the fact that it's an abandonment case?</p>
<p>Say it was a case involving it's a misdemeanor to shoot wildlife, shoot a bird or a deer or something like that, but if one does that and thereafter leaves the state it's a felony.</p>
<p>You'd make the same argument with that kind of statute?</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Yes, sir.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: Same thing?</p>
<p>Yes.</p>
<!-- james_c_bonner_jr--><p><b>Mr. Bonner</b>: Exactly.</p>
<p>I think while it's silent I'll sit down.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Do you have anything further?</p>
<!-- carol_atha_cosgrove--><p><b>Mr. Cosgrove</b>: I don't have anything further.</p>
<!-- warren_e_burger--><p><b>Chief Justice Burger</b>: Thank you, counsel.</p>
<p>The case is submitted.</p>
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Attribution:&nbsp;</div>
The OYEZ Project </div>
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Featured:&nbsp;</div>
No </div>
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Wed, 18 Feb 2009 06:13:07 +000053744 at http://www.oyez.org